HEARINGS BEFORE THE SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES NINETY-SIXTH CONGRESS SECOND SESSION ON H.R. 4736 USE OF CLASSIFIED INFORMATION IN FEDERAL CRIMINAL CASES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000100010019-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 106
• Document Creation Date: December 21, 2016
• Document Release Date: April 2, 2009
• Sequence Number: 19
• Publication Date: April 24, 1980
• Content Type: OPEN SOURCE

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USE OF CLASSIFIED INFORMATION IN FEDERAL
CRIMINAL CASES
OGC/LEGL Review Completed.
HEARINGS
SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
NINETY-SIXTH CONGRESS
H.R. 4736
USE OF CLASSIFIED INFORMATION IN FEDERAL CRIMINAL
CASES
Serial, No. 54
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
63-6320 WASHINGTON : 1980
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JACK BROOKS, Texas
ROBERT W. KASTENMEIER, Wisconsin
DON EDWARDS, California
JOHN CONYERS, JR., Michigan
JOHN F. SEIBERLING, Ohio
GEORGE E. DANIELSON, California
ROBERT F. DRINAN, Massachusetts
ELIZABETH HOLTZMAN, New York
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES, New Jersey
SAM B. HALL. JR., Texas
LAMAR (JUDGER, North Carolina
HAROLD L. VOLKMER, Missouri
HERBERT E. HARRIS If, Virginia
MIKE SYNAR, Oklahoma
MICHAEL D. BARNES, Maryland
DAN GLICKMAN, Kansas
BOB CARR, Michigan
BILLY LEE EVANS, Georgia
ROBERT McCLORY, Illinois
TOM RAILSBACK, Illinois
HAMILTON FISH, JR., New York
M. CALDWELL BUTLER, Virginia
CARLOS J. MOORHEAD, California
JOHN M. ASHBROOK, Ohio
HENRY J. HYDE, Illinois
THOMAS N. KINDNESS, Ohio
HAROLD S. SAWYER, Michigan
DAN LUNGREN, California
F. JAMES SENSENBRENNER, JR., Wisconsin
JOSEPH L. NELLIS, General Counsel
GARNER J. CLINE, Stag Director
FRANKLIN G. POLE, Associate Counsel
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
DON EDWARDS, California, Chairman
ROBERT W. KASTENMEIER, Wisconsin HENRY 1. HYDE, Illinois
JOHN F. SEIBERLING, Ohio JOHN M. ASHBROOK, Ohio
ROBERT F. DRINAN, Massachusetts F. JAMES SENSENBRENNER, JR., Wisconsin
ELIZABETH HOLTZMAN, New York
HAROLD L. VOLKMER, Missouri
CATHERINE A. LERoY, Counsel
THOMAS M. BOYD, Associate Counsel
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CONTENTS
HEARINGS HELD Page
April 24, 1980---------------------------------------------------- 1
May 13,1980 ---------------------------- ------------------------ 47
WITNESSES
Adler Allan, Center for National Security Studies--------------------- 49
I''repared statement --------------------------------------------- 48
Clark, George W., Associate General Counsel for Intelligence Community
Affairs, Central Intelligence Agency on behalf of Daniel B. Silver,
General Counsel, CIA-------------------------------------------- 2
Prepared. statement of Mr. Silver-------------------------------- 33
Dondy, Virginia, Associate General Counsel, Department of Defense----- 2
Halperin, Mortin H., American Civil Liberties Union and the Center for
National Security Studies---------------------------------------- 49
Prepared statement-------------------------------------------- 48
Heymann, Philip B., Assistant Attorney General, Criminal Division, U.S.
Department of Justice------------------------------------------- 2
Prepared statement-------------------------------------------- 8
Tigar Michael E.,------------------------------------------------- 49
Irepared statement-------------------------------------------- 51
ADDITIONAL MATERIAL
1. Summary of selected cases in which national security information has
been an issue------------------------------------------------- 83
2. Letter from the Administrative Office of the U.S. courts------------- 84
3. Letter from the American Bar Association------------------------- 84
4. Letter to Edward P. Boland, chairman, House Permanent Select Com-
mittee on Intelligence, from Don Edwards, chairman, Subcommittee
on Civil and Constitutional Rights----------------------------- 85
5. Letter to Don Edwards from Edward P. Boland-------------------- 86
6. Text of H.R.4736---------------------------------------------- 87
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USE OF CLASSIFIED INFORMATION IN FEDERAL
CRIMINAL CASES
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
OF THE COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met at 9:43 a.m., in room 2237 of the Rayburn
House Office Building, Hon. Don Edwards (chairman of the subcom-
mittee) presiding.
Present: Representatives Edwards, Drinan, Volkmer, and Hyde.
Staff present: Catherine LeRoy, counsel, and Thomas M. Boyd,
associate counsel.
Mr. EDWARDS. The subcommittee will come to order.
In recent years we have seen a number of highly publicized criminal
trials in which the use of classified information became a major issue.
These include espionage trials of individuals accused of selling or
transmitting national security secrets to our enemies, as well as
prosecutions of high Government officials for official wrongdoing.
In the course of these prosecutions, the defense may seek to intro-
duce highly sensitive classified information as part of its case. Depend-
ing on the nature of the information and the extent to which it has
already been compromised, the Government may be confronted with
the dilemma of disclosing the sensitive information or dismissing the
prosecution.
This phenomenon has come to be called "graymail". This is perhaps
a misnomer, because it implies something improper, verging on the
illegal, when, in fact, it may be that a defendant is merely seeking to
exercise his right to present his case to a jury in open-court.
Nevertheless, the Government may be placed in a difficult situation,
not knowing until too late the extent of damage to be done by dis-
closure, and thus forced either to gamble or to not bring the prosecution
in the first place.
For the past year, our colleagues on the House Intelligence Com-
mittee have been wrestling with this problem, attempting to reconcile
the rights of the accused with the demands of national security. They
have deliberated with the advice and assistance of the intelligence
community, the Justice Department, legal scholars, civil liberties
groups, defense attorneys, and others.
Finally on February 12 they-reached what they believed to be a
workable legislative solution to the handling of national security data
in criminal cases. The committee unanimously reported H.R. 4736,
the proposed "Classified Information Procedures Act." That bill,
along with an administration proposal to deal with the graymail
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problems, have been jointly referred to the House Judiciary
Committee. (See p. 87 for text of H.R. 4736.)
Today we begin consideration of the graymail legislation. The
Judiciary Committee has the special obligation to assure itself and
the Congress that legislation affecting criminal procedure does not
impinge on rights guaranteed by our Constitution. We will have several
hearings on this legislation in the next few months. The Intelligence
Committee has set a high standard in terms of the care with which
they dealt with this bill and the unanimity with which they acted upon
it. We will proceed with similar seriousness.
Our first witnesses today are representatives from the administra-
tion, which has been a strong advocate for such legislation.
From the Justice Department, we have Assistant Attorney General
Philip Heymann of the Criminal Division.
With him are George W. Clarke, Associate General Counsel for
Intelligence Community Affairs from the Central Intelligence Agency,
and Virginia Dondy, Associate General Counsel at the Department of
Defense.
Mr. Heymann will begin with an opening statement, and then all
witnesses will answer questions-or perhaps my colleague from
Massachusetts has something?
Mr. DRINAN. Well, I may make a contribution. My concern this
morning, Mr. Chairman, is not "graymail" but Rosie Ruiz. [Laughter.]
I think that we ought to have a Federal investigation as this is
clearly affecting interstate commerce; and the people of Boston are
very interested in what the Department of Justice is going to do.
Mr. HEYMANN. We have been chastened by your subcommittee,
Mr. Drinan, and we will not investigate any matter unless it has
extremely substantial interstate contact. This one may measure up,
but we haven't decided yet.
Mr. DRINAN. The people of Boston think it'has global implications.
[Laughter.]
Mr. EDWARDS. Well, Rosie is either a very good runner or a very
good actor.
TESTIMONY OF PHILIP B. HEYMANN, ASSISTANT ATTORNEY
GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE,
ACCOMPANIED BY GEORGE W. CLARKE, ASSOCIATE GENERAL
COUNSEL FOR INTELLIGENCE COMMUNITY AFFAIRS, CENTRAL
INTELLIGENCE AGENCY; AND VIRGINIA DONDY, ASSOCIATE
GENERAL COUNSEL AT THE DEPARTMENT OF DEFENSE
Mr. HEYMANN. It is a pleasure to appear before the subcommittee.
This is a piece of legislation that we are very anxious to see moved.
It's a rare piece of legislation. It's legislation that everyone in sight
seems to want.
I hope that doesn't make anybody on the committee too suspicious.
It's favored by the ACLU, it's favored by the ABA, it's favored by
the Justice Department, by my colleagues from the CIA, and the
Department of Defense.
There is a bill close to being approved in the Senate Judiciary and
Intelligence Committees. There is a bill out of the House Intelligence
Committee.
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The bill that I'll spend most of my time talking about, H.R. 4736,
introduced by Congressman Murphy, and coming out of the House
Intelligence Committee, is not our first choice; but everything here is so
close to being acceptable to everybody that we don't want anything
to slow the process.
We would think it a great contribution if the Congress could pass a
graymail bill this year.
On the understanding, Mr. Chairman, that my written statement
can go into the record, I'll be a little bit shorter and a little bit
colloquial.
Let me explain a little bit how it comes about that there is such
agreement on the need for a graymail bill. There are very few matters
that are fundamental issues of procedure, criminal law, or national
security on which there is this measure of agreement.
The answer is twofold:
First: The cases that are involved spread along a gamut of interest.
The cases that will be affected by a bill like this are few each year,
perhaps 5 or 6 or 10 total, I would guess; but some of them involve
high executive officials, including-it could be any one of the three of
us at this table-those with access to national security materials,
whose criminal conduct it would be difficult if not impossible to
investigate without some such bill as this.
In other words, people who have access in the executive branch to
national security material have the prospect of delaying and, in fact,
defeating any criminal investigation now.
The other category that's covered is spies, to be frank. In espionage
cases we have substantial problems bringing the clearest of espio-
nage cases in the worst of circumstances-for example, cash payment
for transfer of documents to the Soviet Union-because of the prob-
lems of graymail.
Now, I want to make clear at the start with you, Chairman Edwards,
that it is difficult if not impossible to distinguish good faith graymail
from bad faith graymail. When I say graymail, I don't want to pick
up all the connotations of blackmail, extortion, wrongdoing. To some
extent it will be there.
Trials are competitive, adversary things, and if there's an advantage
to be gained by demanding a document that you know the Govern-
ment will not turn over, each of us would have to question whether a
e lawyer didn't almost have an obligation to demand that document on
behalf of his client, at least if there were any plausible grounds for
asking for it. You would have to be very sure that there were no
plausible grounds before you failed to ask for it.
In some cases, graymail is a natural consequence, one without any
intent to force us to back down on our present procedures. The simple
fact is that the present process of a trial requires the Federal Gov-
ernment to guess what the defendant may want to introduce at trial
in terms of classified national security secrets, and what the judge
will permit the defendant to introduce, that is, what the judge will
find relevant.
With us in a guessing posture, it becomes difficult to impossible for
us to make an intelligent estimate of whether we ought to proceed
in an ITT case or Kampiles case, one that involves high officials or
one that involves espionage.
That leads me to the second reason why there is the strange meas-
ure of agreement across a broad spectrum on this bill, and that is,
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what we are trying to do, and what everybody thinks, including
myself, that we are doing, is only to eliminate guesswork.
If you like, this is a bill that prohibits waste, and nobody is here to
defend. waste.
Right now cases are not being tried simply because we can't tell
what will happen at trial. The primary function of this bill is to bring,
at an earlier stage and before a judge, the crucial decision that will
enable us to make an intelligent and fair decision as to whether to
proceed.
These bills are written in such a way that no substantive right, no
procedural right is denied the defendant. The guesswork, the un-
certainty, the dismissals where there was no need to dismiss are
wrung out of the system.
There will still be a number of cases in which we will not be able to
prosecute, because some national security matter that can't be
handled in any other way and is very important to our national se-
curity is at the heart of the defendant's defense, or even relevant to a
defendant's defense. So we can't do anything with it, and we will
have to dismiss in that case.
But the mistakes, the cases where we don't have to dismiss, the
cases where the defendant's every right can be protected, and still
have us go to trial and not have high executive officials walking free
because of the secrets that they have in their head, or spies walking
free because of the secrets they have-these mistakes are going to be
wrung out of the system.
So the measure of agreement is accounted for by the fact that it
reaches a few cases, but a range of cases that are of interest to people
who are concerned about wrongdoing by high Government officials
and people who are concerned about espionage.
What it reaches is wastes, mistakes; it doesn't reach substantive
rights.
Having said that, I think it would be worthwhile to walk you
through the provisions of the bill, not in elaborate detail, but you
can come back on any of those that you like; but just to tell you how
it does what I have just said it does: wring out the mistakes.
I will refer to the House Intelligence bill. At the end I'll mention
two things about the bill that we disagree with, and then I am going
to say that if we could move this, if it would help move it, we will
withdraw any contention as to one of them, the Jencks Act provision.
The first thing it does is to require a defendant before trial, right
at the earliest stage, to notify the Government and the judge if .the
defendant plans to use classified materials.
I should say one other thing as I go through this:
Every provision in the bill-another reason why there's so little
dispute about it-has precedent; precedent, for example, in that we
do the same thing with regard to rape; we do the same thing with
regard to informants. Each of them has precedent built into the present
rules of evidence, the rules of criminal procedure, or the court de-
cisions-or, I believe each of them has such precedent. You will
generally find that there is a close analogy to every provision. Obvi-
ously there is such precedent as to pretrial hearings on complicated
matters.
The fact that the defendant is going to bring up, is going to want to
bring up, classified matter has to be brought up at the earliest stage.
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Its purpose is to apprise the Government of the defendant's inten-
tion to disclose classified matters so that the Government may deter-
mine whether it would be necessary to seek a ruling pretrial from the
judge as to whether it's going to be admissible.
It may be that the judge will look at it and say, OK, it's classified;
do you want to admit it? Admit it. It doesn't matter to us.
This is very similar to rule 12 of the Federal Rules of Criminal
Procedure and rule 412 of the Federal Rules of Evidence.
If the defendant doesn't let us know at that time, and let the judge
know at that time, he can still introduce the evidence later if it comes
up later; but, again, at a later stage of trial he's going. to have to
? give us notice.
If he flagrantly disobeys the rule, I think the judge could tell him,
.no, you can't introduce that; for no good reason, you repeatedly failed
to let us know about it.
? Now, the second thing it does is, having given us notice, it allows
for a pretrail in camera hearing, with the defendant and defense
counsel there, but without the public there, to determine whether the
classified information that the defendant wants to admit would be
admissible, whether it would ever go in.
Upon certification by the Attorney General that a public proceed-
ing may result in the disclosure of classified information, the pretrial
determination would be made in camera-that would be with the
judge, the defendant, and defense counsel present.
The purpose of the provision is to prevent the unnecessary abandon-
ment of prosecutions or make it possible for the Government to
determine in advance whether the evidence is going to go in.
The Government has to move for this pretrial proceeding. It can do
it either in response to notice by the defendant or on its own initia-
tive. The reason we have to be able to do it on on our own initiative
is that cases do come up, and the ITT case was such a case, where we
fear or suspect that the defendant plans to introduce classified informa-
tion; yet, we want to determine that in advance, and we don't want to,
ourselves, make clear exactly what it is.
I don't think it's worth spelling this all out. Sometimes it turns out
that a defendant may, we think, want to bring out that somebody
was a CIA agent. Now, that may very well be relevant at trial; but it
may be the Government who goes into the court and says, pretrial,
? we would like a determination of the admissibility of issues relating to
whether anybody in this case was a CIA agent.
Then the defendant will say, yes, there's something like that that we
want to bring out. We are just flagging it. We want to determine
whether Mr. Hyde was a CIA agent. We think that's relevant to the
case. It will be argued our, pretrial.
The third thing the bill does is-and this one is very important-it
provides for alternatives. Everybody agrees on this, too, alternatives
to disclosure of specific classified information.
Let me continue with the example I just gave, with the indulgence
of Mr. Hyde. Frequently a fair defense of the case doesn't require in
any way the specifics of what was the name of the CIA agent, or what
was the location of the defense installation, or what was the caliber of
the artillery.
All a fair and full defense requires is that the defendant be able to
bring out before the court that a CIA agent urged him to commit the
crime, or that he was on a military installation.
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On the other hand, frequently all that. we care about as matters of
national security are the specific names. We are honestly not worried
about the embarrassment that comes, if we've done it, from admitting
that a CIA agent urged Phil Hyde to commit a crime. If it's relevant at
trial, we are happy to have it come out. He shouldn't have done it.
We'll deal with it.
What we don't want is the relevation of the name.
So there's this happy meshing of gears. For a fair defense all you
want is that a CIA agent urged him, coaxed him, offered him $500,
did this and that, but without the name. That's all you need to prepare
a defense. For national security preservation, all you need is that you
don't tell the name, or the location of the submarine, or the caliber
of the weapon.
The third thing the bill does is, it allows and encourages the sub-
stitution of summaries or stipulations for details that affect our
national security.
Again, everybody favors that. The judge, of course, has to approve it.
The fourth thing it does-I don't know how often this will come
up-is it reminds the judge that if the situation gets hopeless, if he
rules that yes, indeed, this information is relevant to the defense-
remember, we're not taking anything away from the defense that will
help it; the statute is written that way-yes, indeed, it's relevant to
the defense; no, you can't get away with a substitute; there's no way
to substitute anything for this; then the fourth thing it does is, the
bill says to the judge, you can dismiss the case, then, if you want; you
can't reveal the secret. You can dismiss the case, but before you dismiss
the case, remember, you may just want to dismiss one count of the
indictment, if it only goes to one count of the indictment.
It encourages the judge to adopt the least restricted, completely
fair sanction against the Government. There were, when last counted,
about 2,500,000 precedents for that provision; which simply says
don't do more than you have to to make things fair.
The fifth thing the bill does is that it allows the Government to
appeal from an order of a judge which says, you have to reveal this
secret if you want the trial to go on.
If you wonder why the defendant doesn't have a right to appeal,
it is because the defendant, of course, has a right to appeal that type
of issue or any other issue after trial; the Government has no right to
appeal after trial in a criminal case.
So it gives us an interlocutory appeal if the judge says, tell the
secret while we say, a summary is absolutely adequate. The bill has
in it a provision for an expedited appeal where it can be resolved,
pretrial, at the appellate level, and quickly. This is a very important
provision.
I've almost run out of important provisions. There are additional
provisions for the protection of classified information. We need them.
I shouldn't say that it is not important; it's just not controversial;
the provisions for protective orders are in this group.
The House Intelligence Committee improved on its initial draft in
a couple of ways that I want to call to your attention; then I am going
to stop talking.
We think that this bill has reciprocity provisions. We try honestly
to disagree with things that are unnecessary, that aren't required by
any sense of fairness, but we are not fighting them. We see this amazing
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confluence of everybody concerned and we don't want to make a fuss
about that.
The House Intelligence Committee made the reciprocity provisions
at least a little fairer to us, we think, and a little bit more sensible,
and we appreciated that.
There are great problems of difficulty with regard to reporting
requirements. The Senate bill had reporting requirements, requiring
us to put in writing exactly why we dismissed each case or didn't
prosecute each case. The House Intelligence Committee has adopted
annual reporting requirements of a more general form.
We urge that strongly. Specific case reporting requirements are
likely to be very offensive to the privacy of the individuals who are
involved in the case, very unfair to the individuals. It endangers
national secrets in a way that makes us nervous. It is an unprecedented
review on a case-by-case basis of prosecutorial discretion.
It's even difficult to apply, because the fact of the matter is, I have
to personally approve each of these, and when I look at them, I have
the Defense Department or CIA saying, we are quite anxious to pro-
tect this secret; I have my line section saying, it's really a relatively
lousy case that we are not likely to win; I have my appellate section
Z mg, this is going to raise an issue that's going to cause trouble.
the factors go into effect at once.
The House Intelligence Committee again requires more reporting
than we are at all happy with, but somewhere it's in the ballpark,
and I am not screaming about anything except that it would be
wonderful to go on with this bill.
We have asked, and I think again it is correct that before a judge
requires classified information to go in, it ought to be a touch more
important than merely relevant. It ought to be up to the standards
required when evidence about an informant goes in the standard
in the Roviaro case of relevant and helpful.
No committee that we've talked to-and I've now talked to the
Senate and the House Intelligence Committees, and this committee
now, Mr. Edwards-has been anxious to change the rules in any way
as to admissibility here, and I think we would believe it was sensible
to leave that simply for judicial determination.
That's an issue again that we wanted, and I'd like to move the bill
on, rather than fight about issues like that.
The last one, which is the one that in many ways concerns the
American Civil Liberties Union most, is a proposed amendment of
the Jencks Act to allow us to do extremely sensible and fair things,
hurting no one in the world.
I still believe it's correct as a matter of principle, but I would like
to drop our amendment to the Jencks Act, which we want, and will
need in some cases, although not in most. I would like to drop it, and
I hereby say to this committee, Mr. Edwards, that if we can move
the bill out, we won't fight for an amendment to the Jencks Act.
I've talked to Dan Silver; I've talked to Mr. West; I am dropping
things because the contribution to the welfare of the country of getting
an one of these bills, the House Intelligence Committee, the Senate
bill, the administration bill, is so great that I don't want any chance
that dispute about specific relatively minor terms will hold us up.
Thanks, Mr. Edwards.
[The full statement follows:]
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rpurtmrnt of ~ustite
PHILIP B. HEYMANN
ASSISTANT ATTORNEY GENERAL
CRIMINAL DIVISION
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
HOUSE OF REPRESENTATIVES
APRIL 24, 1980
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Chairman Edwards and members of the Subcommittee, I am
pleased to appear before you today to discuss H.R. 4736,
a bill introduced by Congressman Murphy which addresses the
problems posed by classified information in criminal cases.
Two other bills which respond to this issue have been
introduced -- H.R. 4745, an Administration bill introduced
by the Chairman of the House Judiciary;Committee, Congressman,
Rodino, and S. 1482, introduced by Senator Biden, Chairman
of the Rights of Americans Subcommittee of the Senate Intelligence
? Committee and of the Criminal Justice Subcommittee of the
Senate Judiciary Committee. I have been privileged to
testify in the hearings which have been held on these bills
in the Senate Subcommittee on Criminal, Justice and in the
House Permanent Select Committee on intelligence. In February,
the House Intelligence Committee approved H.R. 4736, as amended.
The formulation of these three bills, which are substantially
similar in their major contours, was the result of lengthy,
frank, and productive discussion by members of the Congress,
and their staffs, members of the intelligence community, the ABA,
the defense bar, the ACLU, and the Department of Justice.
As I noted at the introduction of these bills in July of
last year, the differences between them "are overshadowed
by the similarities in the basic approach taken ... and
by a common recognition of the need for a legislative response
to the graymail problem."
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In the months since the introduction of-these bills, the
Department of Justice has continued to work with the Congress
and other interested groups to resolve our remaining differences.
I believe that at this stage we are very close to reaching
a consensus on a bill which:will'.provide=.needed'-procedures for
dealing with criminal cases in which the disclosure of classified
information is at issue-and which will meet both the need to protect
against the unnecessary disclosure of highly sensitive national
security information and the need to preserve the defendant's
right to a fair trial. I em therefore pleased, Mr. Chairman,
that you have acted expeditiously in calling this hearing on
H.R. 4736 so that we may explore any remaining differences and
move forward with this much needed legislation.
In my testimony today, I will first briefly discuss the
problems we currently face in criminal prosecutions involving
national security information and the reasons why I believe
there is a need for legislation to resolve those problems.
Second, I will comment on the key provisions of H.R. 4736
as reported by the House Permanent' Select Committee on Intelligence,
and note the significant improvements made by the amendments
of H.R. 4736 passed by the Committee. Finally, I will discuss
major differences between H.R. 4736 and the Administration
bill, H.R. 4745.
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I. THE "GRAYMAIL" PROBLEM
Two of the most important responsibilities of the Executive
are the prosecution of violations of federal criminal laws and
the protection of our national security secrets. Under present
procedures, these responsibilities far too often conflict
forcing the government to choose between accepting the damage
resulting from disclosure of sensitive national security
information and jeopardizing or abandoning the prosecution of
criminal violations. The government's understandable reluctance
to compromise national security information invites defendants
and their counsel to press for the release of sensitive
classified information the threatened disclosure of which
might force the government to forego prosecution. "Graymail"
is the term that has been applied to describe this tactic.
However, the "graymail" problem is not limited to instances
of unscrupulous or questionable conduct by defendants since
wholly proper defense attempts to obtain or disclose classified
information may present the government with the same "disclose
or dismiss" dilemma.
To fully understand this problem, it is necessary to
examine the decision making process in criminal cases involving
classified information. Under present procedures, decisions
regarding the relevance and admissibility of evidence are
normally made as they arise at trial. In advance of trial,
the government must guess whether the defendant will seek to
disclose certain classified information at trial and speculate
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whether it will be found admissible if objected to at trial.
In addition, there is the question whether material will
be disclosed at trial and the damage inflicted before
a ruling on the use of the information can be obtained.
Without a procedure for pretrial rulings on the disclosure
of classified information, the deck is stacked against
proceeding with prosecution of these cases because without
a pretrial determination of which items of classified
information may be ultimately disclosed at trial all
of the sensitive items that might be disclosed must be
weighed in assessing whether the prosecution is sufficiently
important to incur the national security risks.
Thus, in the past, the government has foregone prosecution
of conduct it believed to violate criminal laws in order to
avoid compromising national security information. The costs
of such decisions go beyond the failure to redress particular
instances of criminal conduct. Such determinations foster
the perception that government officials and private persons'
with access to military or technological secrets have a broad
de facto immunity from prosecution. This perception not
only undermines the public's confidence in the fair administration
of criminal justice but also promotes concern that there is
no effective check against improper conduct by members of.our
intelligence agencies.
While only a very small percentage of criminal cases
present classified information questions, these cases often
involve matters of considerable public interest. Moreover,
we are increasingly confronting classified information issues
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in a wide range of cases including espionage, perjury, burglary,
and civil rights violations, among others. The new Foreign
Corrupt Practices Act and the possible enactment of a charter
for intelligence activities can be expected to expand the
number of cases in which the graymail problem will arise.
The Justice Department has endeavored to resolve problems
posed by classified information as they arose in individual
criminal cases. Our experience with such an ad hoc approach
has convinced us of the need for a legislative response to the
graymail problem. Only by establishing a uniform set of
procedures for resolving classified information issues prior
to trial can the speculation and irrationality be removed
from the present system.
Currently, the government can make only a rough and
poorly informed assessment of the national security costs
of a prosecution in which classified information may be at
issue. Under the procedures contained in H.R. 4736, we would
be able to determine whether in fact there was an actual
conflict between our prosecutorial and national security
responsibilities, and if so, to make an informed assessment
of the costs of continuing prosecution.
While it is not possible to eliminate-
..the-tension--.between--the Executive's responsibility to prosecute crime and its
duty to protect the integrity of sensitive national security
information, the procedures contained in H.R. 4736 would
significantly enhance the government's ability to discharge
these responsibilities without jeopardizing the defendant's
right to a fair trial.
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II. H.R. 4736
H.R. 4736, which has been amended and approved by the House
Permanent Select Committee on Intelligence, addresses a wide
range of procedural issues involving classified information
that may arise in the context of a criminal prosecution.
These procedures, which. provide for pretrial rulings and appeals
on whether classifed information may be disclosed by a defendant
at pretrial or trial proceedings will promote necessary uniformity
and predictability. Moreover, in achieving this goal, the
bill would require only modest procedural changes in the manner
in which criminal cases involving classified information are
to be conducted. The primary effect of the bill would be to
alter the timing of rulings on the admissibility of evidence.
Essentially, the major features of the bill are rooted in
statutory provisions and procedural rules that now apply to
the conduct of criminal cases. Furthermore, the provisions of
H.R. 4736 are designed so as to assure that there is no diminution
of the defendant's right to a fair trial.
A. Key Provisions of H.R. 4736.
1. Defense notice of intent to use classified information.
Under section 102(a)(1), the defense is required to inform
the court and the government, before trial, of any classified
information it intends to disclose at trial or at a pretrial
proceeding. This notice requirement is the initial step in
the procedure created by the bill for pretrial determinations
concerning the admissibility of classified information. Its
purpose is to apprise the government of the defendant's intent
to disclose classified information at trial, so that the
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government may determine whether it will be necessary to
seek a pretrial disclosure ruling regarding the information.
Similar notice requirements appear in the rape evidence rule
(Rule 412 of the Federal Rules of Evidence) and in Rules
12.1 and 12.2 of the Federal Rules of Criminal Procedure
which require notice of the defendant's intent to raise
an alibi or insanity defense, respectively.
Consistent with the purpose of the notice requirement,
the defendant may not disclose the information at issue until
the government has been afforded an opportunity to obtain
a predisclosure ruling as provided in section 102. Furthermore,
the bill provides for prior notice of intent to disclose
classified information at the trial stage in those situations
in which the defendant could not have anticipated at an earlier
time that he would wish to reveal such information.
2. Pretrial, in camera determination of the admissibility
of classified information.
The core feature. of H.R. 4736 is its provision for a
pretrial determination of the admissibiltiy of classified
information. Upon certification by the Attorney General
that a public proceeding may result in the disclosure of
classified information, the pretrial determination is to
be made in camera .
The purpose of this provision is to prevent the unnecessary
abandonment of prosecutions by making it possibile for the
government to ascertain, in advance, whether the classified
information at issue will be permitted to be disclosed at
trial. This advance determination of admissibility, coupled
with subsequent determinations concerning the use of alternatives
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to disclosure of specific classified information, and concerning
the sanctions that will be imposed for the government's objection
to disclosure of classified information found to be admissible,
will equip the government to make an informed assessment prior
to trial of the national security costs of continuing the
prosecution as well as the risk to its successful prosecution of
the case by refusing to permit disclosure.
The government may move for a pretrial proceeding concerning
the classified information either in response to notice given
by the defendant or on its own initiative. Thus the government
has the opportunity to obtain a pretrial disclosure ruling
on all the classified information issues that might have
a bearing on its decision to continue prosecution.
When the government requests a pretrial ruling on the
disclosure of classified information, it must identify
the information that will be at issue. Where
the information in question was provided to the defendant
by the government, the specific information is to be identified.
However, in other circumstances, the government is permitted to
identify the information by generic category. This approach,
which might include a category such as "the identity of CIA
agents" might be used in situations where the defendant may
not be aware of the particular information of concern to the
government or may be uncertain of its accuracy. Without this
"generic category" option, the government would be forced to
choose between compromising classified secrets by confirming
the accuracy of the information or providing previously undisclosed
information to the defendant and failing to obtain a pretrial
ruling and so risking public exposure of the information at trial.
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The generic categories used by the government to identify
the information which will be at issue at the pretrial proceeding
are subject to the approval of the court. This requirement of
judicial approval will guard against the use of overly broad
categories and insure that the categories are appropriate to
describe the information of concern to the government.
3. Alternatives to disclosure of specific classified
information.
Once the court has determined in the initial pretrial
proceeding that the classified information at issue is
admissible, the government nonetheless may move that, in lieu
of authorizing the disclosure of specific classified information,
the court order substitution of a summary or a statement
admitting relevant facts. The court must grant the government's
request if it finds that the statement or summary will
"provide the defendant with substantially the same ability to
make his defense."
It is at this stage, under H.R. 4736, that the focus of the
pretrial proceeding is to shift to a consideration of the
classified nature of the information sought to be disclosed.
In support of its motion, the government may submit an affidavit
certifying that disclosure of the specific information would
cause damage to. the national security and setting out the basis
for the classification. At the government's request, the affidavit
is to be reviewed by the court in camera and ex parte.
However, the defendant has a full opportunity to contest the
adequacy of the substitute at a full hearing. This provision
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will permit the government to continue prosecution and avoid
disclosure of sensitive national security information while
assuring that the defendant will be able to use any classified
information necessary to his defense.
Under section 109(b), similar provision is made for the
use of substitutes for the disclosure of specfic;.classified
information at the discovery stage. In our judgment, existing
discovery rules would permit such substitutions. Rule 16(d)(1)
of the Federal Rules of Criminal Procedure provides that
"upon a sufficient showing, the court may at any time order
that discovery or inspection be denied, restricted, or deferred,
or make such other order as is appropriate." The Notes of
the Advisory Committee concerning Rule 16(d)(1) list among
the considerations that may be taken into account by the
court the protection of information vital to the national
security. However, section 109(b) of this bill would provide
needed clarification and guidance.
4. Sanctions other than dismissal.
If the court determines that the defendant may disclose
specific classified information, and the Attorney General
files an affadavit objecting to such disclosure, the court
is to order the defendant not to disclose the information.
It is then the court's task to fashion an appropriate remedy for
the government's denial of the defendant's use of the information.
We view as important section 105(b)'s recognition that this
sanction need not always be dismissal of the entire indictment.
Listed under section 105(b) are examples of lesser sanctions
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that may be imposed. Like other decisions by the court adverse
to the government which occur in the predisclosure proceedings
under H.R. 4736, the government may appeal the imposition of
these sanctions. This permits the government to make the
crucial."disclose or dismiss" decision with a full understanding
of the costs involved.
5. Interlocutory appeal by the government.
Section 108 of H.R. 4736 would authorize the government
to take interlocutory appeals from adverse district court orders
? relating to the disclosure of classified information. Inclusion
of this provisions is a key element in addressing the graymail
problem. At present, the government is powerless to obtain
appellate review of these important district court rulings.
Instead, the government must either compromise the national
security information by permitting its disclosure during the
course of the prosecution or withhold the information and
run the risk of incurring the sanction of dismissal of the case.
Congress has empowered the United States to appeal orders
of a district court suppressing or excluding evidence in a criminal
case. See 18 U.S.C.' 53731. A similar provision authorizing
interlocutory appeals of orders requiring the disclosure of
sensitive national security information is warranted since
such orders may have even a more dramatic impact on a prosecution
than a suppression ruling.
This section also responds to the defendant's interest in
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6. Preservation of the integrity of classified information:
protective orders and development of security procedures.
Two sections of H.R. 4736 address the problem of protecting
against the compromise of national security information. Section
109(a) provides that upon the motion of the government the
court is to issue an order to protect against the disclosure
of classified information provided by the government to the
defense. The authority of the federal courts to issue such
protective orders is well established. The Report of the
Intelligence Committee on H.R. 4736 lists examples of the
kinds of protective provisions that might be included in
such an order.
Section 110(a) directs the Chief Justice to promulgate
security procedures to protect against the compromise of
classified information submitted to the federal courts.
At present, the handling of such materials is often the subject
of ad hoc arrangements developed in each case.
B. Improvements to H.R. 4736 worked by amendments approved by
the House Permanent Select Committee on intelligence.
In two respects, H.R. 4736 as reported by the Permanent Select
Committee on Intelligence is, in the judgment of the Department
of Justice, a significant improvement over the bill as introduced.
The Administration bill, H.R. 4745, contains neither reciprocity
or reporting requirements. On the other hand, H.R. 4736 as
introduced contained expansive reciprocity and reporting require-
ments which were of serious concern to the Department. Responding
in part to these concerns which I raised in my testimony before
the Intelligence Committee, the Committee approved significant
amendments to these provisions.
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1. Reciprocity requirements.
Although the Administration bill contains no reciprocity
requirements, the Department of Justice is not opposed to
reasonable reciprocal disclosure by the government where the
defendant is required in the course of the pretrial
proceedings prescribed by the bill to reveal information
concerning his case which would not otherwise be available to
the government. H.R. 4736, as introduced, would have auto=
matically required the government, whenever the defendant
was authorized to disclose classified information, to provide
the defendant with a bill of particulars, and the information
and the identity of witnesses it expected to use to "rebut"
the classified information at issue. As such, these provisions
were not genuinely reciprocal, for they would have required
substantial additional disclosure by the government even
where the classified information to be disclosed by the
defendant was originally provided by the government. (Indeed,
it is anticipated that in most cases, the classified information
sought to be disclosed by the defendant will be supplied
by the government as part of the discovery process.) The
operation of these provisions, then, often would have placed
a disclosure burden on the government not matched by any
similar disclosure by the defendant. In our view, such
automatic expansion of the defendant's discovery rights would
undermine the very purpose of the legislation by providing
defendants with additional incentives to press for disclosure
of classified information.
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Of particular concern to the Department was the requirement
that we disclose the identities of our witnesses. Since the
bill does not require the defendant to disclose the identity
of his witnesses, those instances in which the identity of
defense witnesses would be revealed in the course of the
required pretrial disclosure determinations would be quite
limited. In addition, we were very much concerned that
mandating automatic disclosure of the identities of our witnesses
would create a significant potential for harm to or intimidation
of witnesses and for the subornation of perjury. Unfortunately,
past experience has clearly demonstrated the dangers of
intimidation and corruption of witnesses where their identity
is made known in advance of trial.
The amendments to the reciprocity provision of section
107 approved by the Intelligence Committee have done much to
meet these concerns. First the addition of section 107(d)
provides that the reciprocity requirements are not to be
automatically invoked where the information to be disclosed
by the defendant was provided by the government. This then
will more accurately reflect a reciprocal disclosure burden
on the prosecution and defense. Second, the disclosure of
government witnesses is, in all cases, to be discretionary
with the court. In exercising this discretion, the court is
to be guided by considerations of 1) the nature and extent of
the defendant's disclosure, 2) the probability of harm to or
intimidation of witnesses) and 3) the probabilitiy of
identifiable harm to the national security.
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2. Reporting requirements.
H.R. 4736, as introduced, contained detailed reporting
requirements which mandated that the government file a
a written report with the House Permanent Select. Committee
on Intelligence and the Select Intelligence Committee of the
Senate whenever "the United States decides not to presecute any
individual for a violation of federal law becuase there is a
possibility that classified information will be revealed."
The contents of these reports were to include 1) findings
detailing the reasons not to prosecute, 2) identification of
the classified information that might be revealed, 3) the
purpose for which the information might be revealed, 4) an
assessment of the probability of such disclosure, and
5) the possibile consequences of such disclosure on the
national security.
The Department of Justice firmly opposed the inclusion
of such a reporting requirement. which calls for a detailed
written justification of the exercise of our prosecutorial
discretion on a case-by-case basis. There' is, to my knowledge,
no precedent for such an incursion into the Executive's
traditional responsibilities. Furthermore, we are unaware
of any pattern of intransigence on the part of the Department
or failure to accomodate the needs of the Intelligence Committees
that would warrant the type of reporting requirements which
were originally included in H.R. 4736.
It is my understanding that the Department has undertaken
in the past to brief these Committees on an informal basis on
aspects of particular cases. I would suggest that a continuation
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of such a flexible, informal process is more in keeping with
the proper roles of two co-equal branches of government.
The Intelligence Committee's approval of an amendment to
the original reporting requirements of H.R. 4736 renders them
considerably less objectionable from the Department's perspective.
Section 202, as amended, directs the Attorney General to report
to the House and Senate Intelligence Committees summaries of
cases in which indictments are not sought or prosecutions
are dismissed because of the danger that classified information
would be revealed. This report is to be filed annually.
I believe it is significant that the very Committee which is
to receive these reports found merit in the arguments we
advanced and rejected the imposition of the detailed reporting
requirements of H.R. 4736 as introduced.
III. MAJOR PROVISIONS OF THE ADMINISTRATION BILL NOT INCLUDED
IN H.R. 4736.
The Administration's bill, H.R. 4745, contains two major
provisions which are not included in H.R. 4736. These are
a "relevant and material" admissibility standard for classified
information and a limited modification of the Jencks Act.
The reasons for the inclusion of these provisions is set out
briefly below.
A. Admissibility Standard for Classified Information.
Under the Administration's bill, the standard for the
admissibility of classified information was to be whether
the information was "relevant and material to an element of
of the offense or a legally cognizable defense." We believe
that the significant governmental interest in nondisclosure
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requires that a more demanding standard than mere relevance
apply in determining the admissibility of information concerning
vital national security matters. The "relevant and material"
standard we proposed was based on the standard adopted by the
Supreme Court in Roviaro v. United States, 353 U.S. 53 (1957)
for determining whether the defendant is entitled to obtain
and disclose the identity of a government informant in a
criminal case. Noting the important "public interest in
effective law enforcement" served by the protection of the
identity of informants, the Court ruled that disclosure of
such information is not required unless the information is
"relevant and helpful to the defense of an accused or is
essential to a fair determination of a cause." 353 U.S. at
59, 60-61. We believe that a similar standard would be appropriate
in cases involving national security matters, for the interest in
protecting the confidentiality of classified information is
equally, if not more compelling as that in protecting the
identities of government informants.
Nonetheless, there has been considerable opposition to the
inclusion of the Administration's "relevant and material"
standard for the admissibility of classified information, and
its adoption was rejected by the House Intelligence Committee.
In the Committee's Report which accompanies H.R. 4736, it was
stressed that "[i]t is the intent of the Committee that
existing standards of use, relevance, and/or admissibility of
evidence not be affected by H.R. 4736." H.R. Rep. No. 96-831,
96th Cong. 2d Sess. 14 (1980).
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B. Limited Modification of the Jencks Act.
Currently, the Jencks Act (18 U.S.C. 53500) would require
the disclosure of classified information contained in the
statement of a government witness which, though related to
the subject matter of the witness' testimony, is not at
all inconsistent with the witness' testimony and thus of
no value for impeachment purposes. Therefore, in the
Administration's bill, we proposed that if the court found
that disclosure of the classified information contained
in'the witness' statement would damage the national security
and that portion of the statement were consistent with the
witness' testimony, the court could excise that portion
of the statement before it was delivered to the defense.
We believe that this proposed modification is entirely
in keeping with the purpose of the Jencks Act which is to
assist the defendant in impeaching the testimony of government
witnesses. Precedent for permitting the review of Jencks Act
statements and the deletion of materials by the court prior to
delivery of the statement to the defendant already exists in
subsection (c) of the Act, which requires the court to excise
portions of the statement that are found not to relate to
the subject matter of the witness' statement. Furthermore,
it is important to emphasize that the issue of this proposed
modification of the Jencks Act is one of policy, not consitutional
law. As the Supreme Court made clear a decade ago in its
unanimous opinion in United States v. Augenblick, 393 U.S.
348, 356 (1969): "the Jencks decision and the Jencks Act
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were not cast in constitutional terms. Palermo v. United States,
[360 U.S. 3431 at 345, 360. They state rules of evidence
governing trial before federal tribunals; we have never extended
their principles to state criminal trials."
Nonetheless, the proposed modification of the Jencks Act
set out in the Administration bill has been the subject of
considerable controversy. We believe the potential for
prejudice to the defendant from the proposed limitation
on the Jencks Act's disclosure provisions is extremely
remote. Absent the inclusion of such a provision, the United
States may needlessly be forced to forego the use of a crucial
witness, drop a prosecution entirely, or compromise sensitive
national security information. Fortunately, this problem
can be expected to arise relatively infrequently, although in
those cases in which it does arise, prosecution of the case
may be seriously jeopardized. We will be prepared to accept
the Committee's resolution of this issue, in order to speed
passage of the bill.
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I believe that we are now nearing. final agreement on a
graymail bill that will be acceptable to all parties concerned.
As I noted above, H.R. 4736 will require only modest procedural
changes in the manner in which criminal cases involving classified
information are conducted. Yet by providing much needed uniformity
and predictability through procedures which permit the orderly
resolution prior, to trial of the problem of disclosure of
classified information, such legislation would provide an
equitable and reasonable approach to the troublesome issues
arising in criminal prosecutions involving sensitive national
security information.
While there will always be cases in which the risks of
revealing highly sensitive classified information will be
too great to permit prosecution, legislation such as H.R. 4736
would permit a significant number of cases to proceed to trial
which otherwise could not be pursued because of the government's
current inability to make an informed assessment of the risks
of continuing prosecution.
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Mr. EDWARD. Thank you.
Mr. Clarke, I believe you have a statement?
Mr. CLARKE. Yes, sir. Very well, I will read Mr. Silver's statement.
Mr. Chairman and members of the committee, I appreciate the
opportunity to testify concerning H.R. 4736, the "Classified Informa-
tion Criminal Trial Procedures Act," as reported by the House
Permanent Select Committee on Intelligence on February 12.
The so-called graymail problem which this bill addresses is
one of the most pressing concerns that I face in carrying out my
duties.
I might add, Mr. Chairman, at this point that during the 6 years
that I have been with the General Counsel's Office, we have had all
of the major cases which have given the major impetus to this bill
that the committee is now considering.
I would just like to mention those cases right at the beginning:
that of the United States v. Moore, which was an espionage prosecution;
United States v. Boyce and Lee, which were also espionage prosecu-
tions; the United States v. Kampiles, which was also an espionage
prosecution.
Indeed, Admiral Turner has told me on several occasions that of all
the difficult decisions he has faced as Director of Central Intelligence,
some of the most agonizing have involved the tension between his
statutory duty to protect intelligence sources and methods and his
desire to facilitate enforcement of the criminal laws of the United
States. I know that he wholeheartedly supports enactment of "gray-
mail" legislation, and he testified to this effect before the Senate
select committee over 1% years ago.
I will make a few brief remarks about specific features of H.R.
4736 as compared with the administration's own proposal and, of
course, I will defer to Mr. Heymann on those issues which he feels
should be dropped in the interest of moving forward.
However, I would like to point out that the Agency feels that some
of those provisions will provide greater protection to sensitive classi-
fied information of interest to the Agency.
I wish to make it clear at the outset, however, that in my view the
differences among the two House bills are of much less importance
than the common features of the proposed legislation.
Enactment of any of these measures would be a significant improve-
ment over the situation that exists today.
Both bills, for example, provide for a pretrial conference to consider
matters relating to classified information that may arise in connection
with a prosecution.
Both bills permit this conference to be held in camera and provide
for an interlocutory appeal.
In addition, both bills allow for alternative forms of disclosure to
protect classified information.
Both bills permit writings, recordings and photographs containing
classified information to be admitted into evidence without change in
its classified status.
Under current law and practice, criminal litigation in which classi-
fied intelligence information. may be involved creates severe problems
for the intelligence community. These problems arise in three main
areas.
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If I could just summarize those, the first, as I mentioned are the
espionage prosecutions, where I have mentioned specific cases.
The second area are those cases which involve violation of other
laws, but which somehow tangentially involve classified intelligence
information. The ITT-Chile prosecution Mr. Heymann referred to
was one such case.
The third area in which the legislation would be of a significant
benefit are those cases in which intelligence community or other em-
ployees who have had access to classified information may be charged
with a criminal offense. It would be useful to have these procedures
to prevent the disclosure of information in these cases during the
course of trial.
The great advantage of both H.R. 4836 and H.R. 4745 is that these
bills would bring about a substantial reduction in the number of
difficult and often unnecessary confrontations between the interests
of criminal law enforcement and the protection of intelligence sources
and methods.
They would do so by clearly confirming the power of the courts to
employ procedures that will bring a measure of certainty and pre-
dictability to the prosecutorial decisionmaking process.
The most important feature of the bills is that they create a pro-
cedural framework for orderly determination of what sensitive infor-
mation will be needed to support a prosecution.
The essential features of this framework are-and I don't think
I need to cover those, Mr. Chairman; Mr. Heymann has covered them
very adequately.
The administration's bill contains a number of provisions, lacking
in H.R. 4736, that would remedy troublesome problems which now
confront the Government during the course of a graymail prosecution.
I would like to draw the committee's attention to some of the differ-
ences in the two bills and suggest that the committee consider adoption
of these provisions.
One major difference between H.R. 4736 and the administration's
bill is the omission in H.R. 4736 of the specific "relevant and material"
finding that a court must make before classified information can be
used at a pretrail or a trial proceeding.
We would, or course, prefer the stricter language of the administra-
tion bill in order to protect classified information from unnecessary
disclosure.
What this means is, as Mr. Heymann pointed out, that it requires
a higher standard before evidence that is classified in nature could be
admitted at the trial.
We feel the higher standard should be adopted, as this will give our
information greater protection and will obviate the need to go into
such areas which aren't really key or central to the defendant's case.
A second major difference between H.R. 4736 and H.R. 4745 is
that H.R. 4736 omits section 8(c) which would permit the Govern-
ment to prove the contents of a classified document without intro-
ducing the original or a duplicate into evidence.
This is a so-called modification of the best evidence rule.
The House version, as reported, addresses this issue with regard
only to the pretrial discovery process. I would strongly urge the
committee to include a section in H.R. 4736 which would extend the
protection to the courtroom.
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Such a section would allow other evidence, such as testimony, to
prove the matters for which a document would otherwise be admitted
into evidence and thus enable the Government to protect classified
information in the document from unnecessary disclosure during the
trial.
This provision could be particularly useful in a case under 18 U.S.C.
794, involving an unsuccessful attempt to deliver classified documents
to an agent of a foreign government. Where attempted espionage has
been nipped in the bud, it would be particularly unfortunate if the
Government had to disclose publicly the very information it had
prevented the defendant from passing to a foreign power.
By relying on testimony to prove that the particular documents
involved were related to the national defense, the Government could
minimize the damage to the national security that would result from
introduction of the documents in evidence.
Through testimony, the Government would be able to focus on
specific matters of its choice to prove that a given document relates
to the national defense, without exposing the entire document at
public trial. Classified photographs are a type of documentary evi-
dence for which subsection 8(c) of H.R. 4745 would seem particularly
well suited.
The defendant would be free, of course, to cross-examine in detail
on any matter put into evidence by the Government or to introduce
classified information on his own behalf if notice has been given under
section 5 and the procedure established by section 6 has been followed.
Section 109(a) of H.R. 4736 allows a court to enter a protective
order but does not define the acceptable scope of such an order in the
statute. In contrast, the analogous section of H. R. 4745 lists seven
specific items that may be included in such a protective order.
I note, however, that the House Intelligence Committee has enu-
merated these items explicitly in the committee report accompanying
the bill. While such legislative history is useful, statutory language is
more authoritative, and I think it would be more helpful to us.
Thus, I would urge this committee to include the specific examples
in the legislation.
Experience in the cases I related to you has demonstrated that these
items are the most important kinds of protective provisions necessary
to preserve the security of intelligence information, and that the
courts sometimes are in doubt as to whether they have the power to use
them. The list is permissive rather than mandatory, but serves a useful
purpose in making clear the authority of the courts to order certain
protective measures.
Mr. Heymann has given his views as to the Jencks amendment, and
I think we prefer his views on that.
Additionally, I would like to briefly comment on the provisions of
H.R. 4736 that I consider particularly important:
Section 102(f) would permit the Government to object during the
examination of any witness to a question or line of inquiry that may
result in the disclosure of classified information that has not been
found previously to be admissible pursuant to the procedure estab-
lished by section 102.
This provision is of great importance in order to prevent the inten-
tional or inadvertent premature disclosure of classified information at
trial, by permitting the Government to object and obtain a ruling
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from the court on the basis of the in camera procedure established by
section 102.
Section 109(b), which would allow the Government, during the
pretrial discovery process, to substitute a summary or a statement of
facts in lieu of specific items of classified information that the court
has ruled the defendant is entitled to discover or inspect, is indispens-
able. Without it, the remaining protections in the bill can be rendered
nugatory by aggressive discovery tactics on the part of defendants.
Section 109(d) employs the court to order the excision of part or all
of the classified information contained in a document to be admitted
in evidence. This provision will allow for the protection of classified
information not central to the purpose for which the document is to
be admitted into evidence.
The Government was able to delete some sensitive, classified
information from the highly classified manual that was involved in
the Kampiles espionage prosecution. because the defendant gave his
consent. Section 109(a) would allow the court to order such deletions
over a defendant's objection.
A particularly important feature of the bill, found in section 109(c),
provides for documentary evidence to be admitted at trial without
change in its classification status.
This would permit the Government to introduce a document
classified secret as it is, with no requirement for formal declassification
or removal or classified markings.
In the past, CIA and other entities of the intelligence community
have been called upon by the Department of Justice to declassify
documents said to be needed to support a prosecution. If such docu-
ments are validly classified, however, it makes little sense to call for
their declassification simply because they will be used in some fashion
at trial.
Declassification necessitates a finding that public disclosure will
not harm the national security, a finding at odds with an essential
element of the crime under many of the espionage statutes.
Furthermore, the rules on classification do not require that a docu-
ment be declassified in order to be shown to a limited number of
uncleared users, if circumstances make it in the interest of national
security to do so.
The use at trial of a validly classified document recognizes the
reality of a situation in which a national security risk is being taken
to achieve a law enforcement purpose that cannot be achieved without
some risk.
Under section 109(c) it would be left up to the agency involved to
determine if a particular document has been so compromised through
use at trial as to require formal declassification. If no declassification
is called for, such a document would be subject to continued protec-
tion under the security procedures called for by section 110.
In closing I would like to thank the committee for this opportunity
to present the CIA's views on this important, legislation, and to com-
mend the committee for its efforts to find a solution to the legitimate
but painful dilemmas that arise when sensitive intelligence infor-
mation. is drawn into the prosecution of criminal cases.
I believe H.R. 4736 contains the elements of a sound and equitable
solution to the graymail problem, although it could be strengthened
in the ways I have mentioned.
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If this legislation is enacted, I am confident that the Director of
Central Intelligence, the intelligence community, the CIA, and. the
Department of Justice will be able largely to eliminate the graymail
phenomenon and to protect legitimate national security information
from unnecessary disclosure.
At the same time, I am confident that there will be no infringement
on the principles of impartial enforcement of the laws and a fair trial.
Thank you, Mr. Chairman.
[The full statement follows:]
STATEMENT OF DANIEL B. SILVER, GENERAL COUNSEL,. CENTRAL INTELLIGENCE
AGENCY
Mr. Chairman and members of the committee, I appreciate the opportunity to
testify concerning H.R. 4736, the "Classified Information Criminal Trial Pro-
cedures Act," as reported by the House Permanent Select Committee on Intelli-
gence on February 12. The so-called "graymail" problem which this bill addresses
is one of the most pressing concerns that I face in carrying out my duties. New law
to deal with this problem is a principal legislative priority of the Central Intelli-
gence Agency. Indeed, Admiral Turner has told me on several occasions that of
all the difficult decisions he has faced as Director of Central Intelligence, some of
the most agonizing have involved the tension between his statutory duty to pro-
tect intelligence sources and methods and his desire to facilitate enforcement of
the criminal laws of the United States. I know that he wholeheartedly supports
enactment of "graymail" legislation.
I will make a few brief remarks about specific features of H.R. 4736 as compared
with the administration's own proposal. H.R. 4745. I wish to make it clear at the
outset, however, that in my view the differences among the two House bills are of
much less importance than the common features of the proposed legislation.
Enactment of any of these measures would be a significant improvement over the
situation that exists today. Both bills, for example, provide for a pretrial conference
to consider matters relating to classified information that may arise in connection
with a prosecution. Both bills permit this conference to be held in camera, and
provide for an interlocutory appeal. In addition, both bills allow for alternative
forms of disclosure to protect classified information. Both bills permit writings,
recordings, and photographs containing classified information to be admitted into
evidence without change in its classified status.
Under current law and practice, criminal litigation in which classified intelligence
information may be involved creates severe problems for the intelligence com-
munity. These problems arise in three main areas:
The first is cases of espionage or unauthorized disclosure of classified information.
In my experience, first as General Counsel of the National Security Agency and
now as General Counsel of the Central Intelligence Agency. A substantial number
of unauthorized disclosures and acts of espionage have not been pursued because it
was evident that prosecution would force the Government to risk disclosing addi-
tional, even more damaging, classified information. To the extent that new law
can ameliorate this problem, the intelligence community believes there is a pressing
need to do so.
A second area of great concern is enforcement of the criminal laws in matters
not directly affecting the interests of the intelligence community. In a variety of
situations, tangential involvement of intelligence agencies with persons accused
of crimes has enabled such persons to exploit the threat of disclosure of intelligence
secrets as a means of hampering prosecution. As officers of the United States
Government sworn to uphold the Constitution and laws of the United States, we
deplore this phenomenon as much as do the attorneys in the criminal division of
the Justice Department.
Nonetheless, we have a duty to protect intelligence sources and methods from
disclosure in the interests of enhancing the national security. In doing so, we
frequently become involved in painful differences of opinion with our colleagues in
the Justice Department, and the intelligence agencies are often the subject cf
severe public criticism for allegedly preventing the prosecution of wrongdoers.
Obviously, we have a strong interest in graymail legislation that would remove us
from an uncomfortable position in which our motives are frequently mis-
understood.
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The third area of concern has to do with intelligence agency employees. Some of
the proponents of graymail legislation seem to view as its principal advantage the
notion that it will permit incarcerating a large number of intelligence officers. This
is nonsense. As in any large organization, however, occasionally, but fortunately
infrequently, an intelligence agency employee will commit a crime, such as mis-
appropriation of Government funds. When such an employee has been engaged in
clandestine intelligence activities, it is virtually impossible to prosecute the case
without disclosing intelligence source and method information and without the
risk that the defendant will contrive some means of dragging further classified
information into the case. It is frustrating to the agency's management and to our
overwhelming majority of honest and upright employees that the full measure of
the law cannot be visited on the occasional miscreant. We would welcome graymail
legislation that would solve this problem.
The great advantage of both H.R. 4736 and H.R. 4745 is that these bills would
bring about a substantial reduction in the number of difficult, and often unneces-
sary, confrontations between the interests of criminal law enforcement and the
protection of intelligence sources and methods. They would do so by clearly com-
firming the power of the courts to employ procedures that will bring a measure of
certainty and predictability to the prosecutorial decisionmaking process. The
most important feature of the bills is that they create a procedural framework for
orderly determination of what sensitive information will be needed to support a
prosecution. The essential features of this framework are: prior notification of
intended use of classified information; early determinations of whether and in what
manner the information at issue may be used in a trial or pretrial proceeding; and
interlocutory appeal by the Government of adverse trial court rulings on these
issues.
The administration's bill contains a number of provisions, lacking in H.R. 4736,
that would remedy troublesome problems which now confront the Government
during the course of a "graymail" prosecution. I would like to draw the commit-
tee's attention to some of the differences in the two bills to suggest that the com-
mittee adopt these provisions of H.R. 4745.
(1) One major difference between H.R. 4736 and the administration's bill, H.R.
4745, is the omission, in H.R. 4736, of the specific "relevant and material" finding
that a court must make before classified information can be used at a pretrial or
trial proceeding. We would, of course, prefer the stricter language of the adminis-
tration bill in order to protect classified information from unnecessary disclosure.
(2) A second major difference between H.R. 4736 and H.R. 4745 is that H.R.
4736 omits the section (section 8(c)) which would permit the Government to
prove the contents of a classified document without actually introducing the origi-
nal or a duplicate into evidence. The House version, as reported, addresses this
issue with regard only to the pretrial discovery process. I strongly urge this com-
mittee to include a section in H.R. 4736 which would extend the protection to the
courtroom. Such a section would allow other evidence, such as testimony, to prove
the matters for which a document would otherwise be admitted into evidence and,
thus, enable the Government to protect classified information in the document
from unnecessary disclosure during the trial. This provision could be particularly
useful in a case under 18 U.S.C: section 794, involving an unsuccessful attempt to
deliver classified documents to an agent of a foreign government.
Where attempted espionage has been nipped in the bud, it would be particularly y
unfortunate if the Government had to disclose publicly the very information it
had prevented the defendant from passing to a foreign power. By relying on
testimony to prove that the particular documents involved were related to the
national defense, the Government could minimize the damage to the national
security that would result from introduction of the documents in evidence.
Through testimony, the Government would be able to focus on specific matters
of its choice to prove that a given document relates to the national defense, with-
out exposing the entire document at public trial. Classified photographs are a
type of documentary evidence for which subsection 8(c) of H.R. 4745 would
seem particularly well suited. The defendant would be free, of course, to cross-
examine in detail on any matter put into evidence by the Government or to intro-
duce classified information on his own behalf if notice has been given under section
5 and the procedure established by section 6 has been followed.
(3) Section 109(a) of H.R. 4736 allows a court to enter a protective order
but does not define the acceptable scope of such an order in statute. In contrast,
the analogous section of H.R. 4745 lists seven specific items that may be included
in such a protective order. I note, however, that the House Intelligence Committee
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35
has enumerated these items explicitly in the committee report accompanying the
bill. While such legislative history is useful, statutory language is more authorita-
tive. Thus, I would urge this committee to include the specific examples in the
legislation. Experience in national security-related cases has demonstrated that
these items are the most important kinds of protective provisions necessary to
preserve the security of intelligence information and that the courts sometimes
are in doubt as to whether they have power to impose them. The list is permissive
rather than mandatory, but serves a useful purpose in making clear the authority
of the courts to order certain protective measures.
(4) I would also urge this committee to include the Jencks Act provision, which
is contained in section 10 of the administration's bill, H.R. 4745, as part of your
bill.
Additionally I would like briefly to comment on the provisions of H.R. 4736
that I consider particularly important:
Section 102(f) would permit the Government to object during the examination
of any witness to a question or line of inquiry that may result in the disclosure of
classified information that has not been found previously to be admissible pur-
suant to the procedure established by section 102. This provision is of great
importance in order to prevent the intentional or inadvertent premature dis-
closure of classified information at trial, by permitting the Government to object
and obtain a ruling from the court on the basis of the in camera procedure estab-
lished by section 102.
Section 109(b), which would allow the Government during the pretrial discovery
process to substitute a summary or a statement of facts in lieu of specific items of
classified information that the court has ruled the defendant is entitled to discover
or inspect, is indispensable. Without it, the remaining protections in the bill can
be rendered nugatory by aggressive discovery tactics on the part of defendants.
Section 109(d) empowers the court to order the excision of part or all of the
classified information contained in a document to be admitted in evidence. This
provision will allow for the protection of classified information not central to the
purpose for which the document is to be admitted into evidence. The Government
was able to delete some sensitive, classified information from the highly classified
manual that was involved in the Kampiles espionage prosecution because the
defendant gave his consent. Section 109(a) would allow the court to order such
deletions over a defendant's objection.
A particularly important feature of the bill, found in section 109(c), provides
for documentary evidence to be admitted at trial without change in its classifica-
tion status. This would permit the Government to introduce a document classi-
fied "Secret" as it is, with no requirement for formal declassification or removal
of classified markings. In the past, CIA and other entities of the intelligence
community have been called upon by the Department of Justice to declassify
documents said to be needed to support a prosecution. If such documents are
validly classified, however, it makes little sense to call for their declassification
simply because they will be used in some fashion at trial. Declassification neces-
sitates a finding that public disclosure will not harm the national security-a
finding at odds with an essential element of the crime under many of the espionage
laws. Furthermore, the rules on classification do not require that a document be
declassified in order to be shown to a limited number of uncleared users, if cir-
r cumstances make it in the interest of national security to do so. The use at trial
of a validly classified document recognizes the reality of a situation in which a
national security risk is being taken to achieve a law enforcement purpose that
cannot be achieved without some risk. Under section 109(c), it would be left up
to the agency involved to determine if a particular document has been so com-
promised through use at trial as to require formal declassification. If no declassi-
fication is called for, such a document would be subject to continued protection
under the security procedures called for by section 110.
In closing, I would like to thank the committee for this opportunity to present
my views on this important legislation, and to commend the committee for its
efforts to find a solution to the legitigate but painful dilemmas that arise when
sensitive intelligence information is drawn into the prosecution of criminal cases.
I believe H.R. 4736 contains the elements of a sound and equitable solution to the
graymail problem, although it could be strengenthed in certain ways. If this
legislation is enacted, I am confident that the Director of Central Intelligence,
the Intelligence Community, the CIA, and the Department of Justice will be
able largely to eliminate the graymail phenomenon and to protect legitimate
national security information from unnecessary disclosure. At the same time I
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36
am confident that there will be no infringement on the principles of impartial en-
forcement of the laws and a fair trial.
Mr. EDWARDS. Thank you.
Ms. Dondy, did you have a statement?
Ms. DONDY. I don't have a prepared statement, Mr. Edwards; but
I would like to make a few comments, if I may?
Mr. EDWARDS. Yes.
Ms. DONDY. I would like to associate myself with the statements
of both Mr. Heymann and Mr. Clarke.
Enactment of H.R. 4736 as .amended, or 4745, will as I know this
committee recognizes, and as Mr. Heymann and Mr. Clarke have
said, be a significant improvement over the situation that exists today.
Either would create an orderly procedural framework for the nature
and extent of disclosures of classified information required in criminal
prosecutions involving national security information.
I join Mr. Heymann and Mr. Clarke in their commendations to
the committee for its efforts in developing sound and equitable legis-
lative solutions to the graymail problem; and I hope that the com-
mittee will be able to expedite early consideration of the proposed
legislation.
Thank you.
Mr. EDWARDS. Thank you very much.
Mr. Drinan?
Mr. DRINAN? Thank you, Mr. Chairman.
I want to thank all the witnesses for a very fine presentation.
Mr. Chairman, and counsel, I just ask for clarification:
What is the status of this thing? If the Intelligence Committee
moves forward and reports it out, will it become-will it go the floor
if we don't act?
Mr. EDWARDS. Counsel?
Ms. LERoY. Joint referral means the Judiciary Committee has
ind endent jurisdiction over the bill.
7. DRINAN. Is there a time limitation?
Ms. LERoY. No; there is not.
If you report out a different bill, both committees go to the
Rules Committee with both bills.
Mr. DRINAN. Mr. Chairman, I am surprised at Mr. Heymann's
presentation and persuaded that we should move this thing forward;
and that, frankly, some of the close questions here I am not prepared
to answer; and that if the Intelligence Committee can answer them
in a way that is satisfactory to the Justice Department, I feel at the
moment that we should allow them to do that.
In any event I think it is a good measure. But I have one question
about it: Does anybody along the line say that this could advertently
or inadvertently create a state secrets law where classified information
would in fact be the basis on which a conviction resulted?
Mr. HEYMANN. I am quite sure that the answer is no, Father
Drinan; but I might be of more help if you gave me a couple more
sentences in terms of what it might do?
I think there's no way in which this moves us in any way toward a
law that makes mere revelation of classified information a crime. I
think that's correct.
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Mr. DRINAN. Well, I just raise the question whether or not-appar-
ently the ACLU has not gotten that in their testimony and Mr.
Morton Halperin before the Senate seems to have no objection on
behalf of the ACLU.
One additional question: Could this have been done by the usual
process by which rules are made for the Federal courts, namely, the
Advisory Committee recommends something and that becomes law
unless the Congress objects?
Mr. HEYMANN. The answer to that requires sorting out whether
there's anything in here that could not properly be a matter of rules.
I am not sure that I can think of anything that couldn't be a
matter of rules. The rules process would have been much slower.
Roger Pauley reminds me that a crucial provision could not have
been achieved through the rules process, and that is, the right to an
interlocutory appeal-and that's very important
Mr. DRINAN. That's substantive.
Mr. HEYMANN. It would have taken longer, and, as a matter of
fact, we think this deserves congressional attention, specific congres-
sional attention; and it has now had a great deal of that.
Mr. DRINAN. Mr. Chairman, I am pleasantly surprised. I find
myself in agreement with the General Counsel of CIA [laughter] and
apparently they've made a very sensible proposal; and I yield back
the balance of my time; and I reserve the balance of my time.
Mr. EDWARDS. They've come a long way, Mr. Drinan. [Laughter.]
Mr. DRINAN. Yuh, either that or we've gone the other way. [Laugh-
ter.]
Mr. HYDE. Thank you, Mr. Chairman.
In the event the Government prevails and the trial judge says no,
and the defendant appeals to the U.S. Court of Appeals, what pro-
visions for securing this information during review by the U.S. Court
of Appeals is there?
That-is that an in camera hearing up there?
Mr. HEYMANN. The documents themselves would be sealed, Mr.
Hyde. The bill itself has some provisions in it. Maybe somebody will
remind me exactly which ones they are.
Mr. HYDE. Section 104, records of such in camera proceedings shall
be sealed and preserved by the court for use in the event of an appeal.
But I am just wondering once you go up on appeal how that is
mechanically handled, you know, in a big courtroom; does the bill
not provide or should it not provide for an in camera hearing on
ap eals as well?
Mr. HEYMANN. I do not think-what I am about to say is, I am
shooting a little bit from the hip, Mr. Hyde-I don't think there's
any problem with closing an appeal. Perhaps there is-do you, Roger,
have any thoughts on that?
Mr. PAUI.EY. Normally documents would not be revealed in the
course of appeallate argument; they would be preserved in the clerk's
office for use by the judges and clerks.
Mr. HYDE. How are they secured? You've got highly sensitive
documents and defendant is arguing they should be released, they
should have been introduced, offered, available to introduce in evi-
dence.
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You've got three judges, clerks, a court reporter, bailiffs, and all
of this-somebody has got to look at that; and before you had one
judge in an in camera hearing; that's tight security.
What about on the appeal where a lot more people are going to have
access?
Mr. HEYMANN. If I may, Mr. Hyde, let us respond to you quickly
in terms of whether there has been a problem there. And it of course
has come up in the Pentagon Papers case, 12 justices, whatever, 9
justices plus whatever clerks they wanted, had to have access to many
volumes of highly classified documents.
It does come up.
Now, I think the best thing would be rather than for me to guess,
would be for us to come back to you and tell you if there are problems,
and what we think they are.
Mr. HYDE. I just am suggesting-I certainly support the bill-but
I would hate to have it tight on the trial end and loose on the appellate
end.
Mr. HEYMANN. The major problem seems to be my sitting here
without Roger sitting at my arm.
Section 110 of the bill, and my colleague from the CIA alerted me to
that earlier, gives the Chief Justice of the United States, after consul-
tation with the Attorney General and the Director of CIA, the power
to prescribe housekeeping rules which would apply to the district
courts and courts of appeals and the Supreme Court for the handling
and protection against unauthorized disclosure of any classified infor-
mation in their custody.
I think perhaps they anticipated a problem, such as you were con-
cerned about.
Mr. HYDE. I am sorry I didn't anticipate it. Thank you.
Mr. HEYMANN. I am sorry I didn't respond.
Mr. HYDE. Well, I hadn't read the bill.
I have no further questions.
Mr. VOLKMER. I have no questions.
Mr. EDWARDS. Mr. Heymann, how would the law work out in a
case like this, where the defendant has in his possession a memo he
intends to use at trial. You find out about it. It is not classified.
Can the Government quickly classify it?
Mr. HEYMANN. There is, Mr. Edwards, some information that a
person could have that would be highly secret, that would not be
classified.
Most of the information would flow from Government classified
documents.
If we thought that the piece of paper that the particular defendant
had in fact flowed from, was in fact the result of, classified information;
if he had been entrusted in some way with it by the Federal Govern-
ment, we could raise the issue in the way I earlier described by simply
saying : We want to know in advance of trial whether anybody means
to bring up anything with regard to the names of agents in Africa, in
which case he would have to say yes, we mean to bring it up.
And there's the argument about relevance.
But I think that's not quite your question. There it would plainly be
covered, because it was classified.
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Your question goes more to the fact, what if he simply knows it on
his own, didn't get it from the Government; and yet, it's something
that we want kept secret; could we classify it at that time in order to
keep it secret?
And I think the answer to that is that we could not under the rules
of classification, except for atomic energy matters, which have sepa-
rate rules.
I would like to hear from my colleagues from CIA and DOD. I
think we could not simply classify something that an individual had
discovered on his own, in that way.
Mr. CLARKE. It would seem to me if we found out that he was going
to use a particular memo and information that we believed to be classi-
fied, it would be up to us to come in and demonstrate to the court why
we believed the information classified. We would adduce certain
documents or testimony.
I think at that time it would be up to the court to determine, based
on what it hears from the defendant about where he received or ob-
tained the information, to determine whether in fact the information
was classified.
I suppose if the court would determine that the information was in
fact in the public domain then there would be no way that it could be
classified by the Government.
Mr. HEYMANN. And it would have to have initiated with us to be
properly classified information. I believe if somebody simply knew a
secret because they had themselves happened to blunder on it, and it
was not an atomic energy matter, which is separately handled; we
couldn't just say, your secret is hereby classified-I don't believe.
Mr. EDWARDS. In recent cases both CIA's and DOJ's position was
that public information can't be precensored. What is to prevent you
using the same advice here, not you people, but your successors,
where you just go to the judge and say, this is public information.
You know, it has been printed in Life magazine, or something; but it
could be highly prejudicial to the national security and so forth; so
we want the rules to go into effect?
Mr. HEYMANN. The only situation I know you could be referring
to, Mr. Chairman, is the Progressive case; is there something else
you have in mind?
Mr. EDWARDS. That case and other cases, too, where information is
in the public domain would prevent your filing.
Mr. HEYMANN. I think I will leave that to my friend from CIA.
Mr. CLARKE. Mr. Chairman, I don't think we ever took the position
that information in the public domain is classified. We didn't take that
position in the Snepps case. In that case the issue was whether or not
the individual had an obligation under an agreement he signed with
the CIA to submit a book in writing for review; and the issue of
whether or not there was classified information did not come up in that
case.
Mr. EDWARDS. So that is the sole claim there.
Mr. CLARKE. Yes, sir.
Mr. HEYMANN. Solely a contractual claim. He promised not to
publish what he had learned.
Mr. EDWARDS. So under this law we don't run any risk at all of
someone later on going to the judge, justice going to the judge and
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saying, yes, this information is not classified, and opening up a whole
new area of regulation under the law that doesn't concern classified
information. It's just classified stuff you don't want the public to
know about.
Mr. HEYMANN. I think there is no risk that this legislation would in
any Way facilitate our stopping nonclassified information from being
made public, Mr. Edwards. It does riot even really facilitate our stop-
ping classified information from being made public, except as it re-
quires that to be resolved pretrial.
I think the answer to your question is there is no way in which this
would amount to censorship.
Mr. EDWARDS. Do you think in some instances there is value to the
United States in appropriate whistleblowing?
Mr. HEYMANN. Of course.
Mr. EDWARDS. Would this apply to whistleblowing cases?
Mr. HEYMANN. You know, I have promulgated myself a rule which
is in the U.S. attorney's manual. It is written there, and it says that
we will not prosecute any Government employee on a theory of theft
of information if he takes the information to make it available to the
public; it is a broad, whistleblowing protection.
But that does not apply, my rule is limited in such a way it does
not apply to the national security material. If you do take important
national security material and make it available to the public, you
are taking such a serious step that we want people to contemplate
the possibility of criminal prosecution.
There have not been, with the possible exception of the Elsberg
case, criminal prosecutions of somebody for making classified infor-
mation available to the public. There could be done if it were serious
enough; but there has not been. That has been the only exception.
Mr. EDWARDS. So the thrust of this law has to do with national
security; is that correct, then, not just classified information?
Mr. HEYMANN. By its terms it only covers classified information.
It does not change the substantive rules as to what you can do with
classified information in any way; it does not intend to. It doesn't
change the espionage laws, the Atomic Energy Act; it doesn't change
the substantive terms in any way.
All it does is establish a set of procedures so that when national
security information is going to come up at trial, it is resolved in
advance.
Let me say that in one other way.
It is interesting to recognize, Mr. Edwards, in general there are
prohibitions, espionage act prohibitions, against revealing national
security information. There it is written in terms of national security
information, not classified information.
In general, if you reveal such information, you do it at your peril;
and if you do it to a foreign government, we are likely to prosecute
you; and if you do it to the press, we may, but we are not too likely to
prosecute you if we catch you.
If you think about it, those general statutory prohibitions on
revealing national security information could as easily apply in a court-
room as anywhere else; for example, when somebody stands up and he
tells a secret. Obviously that doesn't make good sense. So when you
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think of it, the broader framework is the prohibitions on telling national
security secrets, and I think there have to be such prohibitions.
Next, there is an implicit exception that we all recognize even though
it's never been `imitten down anywhere: When you say something in
your own defense at trial, having been prosecuted, we are not going
to send you to jail. That's the exception to the general rule that when
you tell Government secrets, you go to jail; but when you tell it in
your own defense, you can go to jail.
Then along comes this bill and it says, it better really be something
that has to come out at trial, because if it doesn't really have to come
out at trial, you can do just as well without it and it's unnecessary,
if you are just throwing it around, you go back to the general rule
limiting disclosure, except instead of prosecuting you, the judge will
say, you can't bring it into court.
Mr. VOLKMER. I es; I do have a question, after all.
If we had had the administration bill in effect at the time of the
Berrellez case, what effect would that have had?
Mr. HEYMANN. I would like to answer in a way that's very careful
in terms of revealing any information about the underlying facts
or anything like that.
I think we went to the court of appeals and said that if we could
have procedures somewhat like those of this bill, we could move-ahead,
and would move ahead.
The court of appeals said that there's no occasion for mandamus,
and left us with the district judge who had said that he wasn't going
to create any special procedures, and therefore, we couldn't proceed.
So I think it's fair to say we would have proceeded to trial if we
could have had procedures like this.
Mr. VOLKMER. To protect documents that may have been available
to the defendant?
Mr. HEYMANN. Would you ask that again, Mr. Volkmer?
Mr. VOLKMER. Protective orders to protect documents that would
have been available to defendant, or to prevent documents from being
available to the defendant?
Mr. HEYMANN. You mean in that case?
Mr. VOLKMER. Yes, sir; in that case.
Mr. HEYMANN. I think you are taking me back a little bit in terms
of time, and I'm not absolutely clear in my memory on it.
I think it was more a question, I am quite sure it's a question of
where with the cooperation of the CIA, we had opened our files
broadly to the defendant.
This raises a point that I'd like to call to everyone's attention,
including yours, Mr. Edwards: A bill like this allows us to open our
files relatively broadly to the defendant. In the ITT case, they had
had access and they were broadly given access.
The problem then becomes, if we protect their right to a fair trial
by giving them, letting them see everything we have when it gets to
the trial stage, we need some kind of court order that tells them, you
can't now threaten to reveal at trial every secret the Government
showed you at pretrial.
I don't think it was a problem of discovery in ITT, if I remember
right. We needed an order saying that certain matters that we thought
were irrelevant would not be brought out at trial by the defendant,
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and we couldn't get that type of order; but I am going back in memory
a little, Mr. Volkmer.
Mr. VOLKMER. There was information with CIA that they did not
wish to be disclosed?
Mr. HEYMANN. That's correct, I think the defense itself had rather
complete access to everything, but we didn't want it disclosed publicly.
Mr. VOLKMER. Now, these types of things, the cloak and dagger
thing, which that amounted to, are the things that concern me, the
fact that some of that information is classified, even-this concerns
me. It concerns me that a person is caught up in a case like that and
you can't disclose the information. I mean I think the people of this
country are entitled to know as much as any other foreign country.
Mr. HEYMANN. Let me respond to what you said.
One thing you said is, look if a person gets caught up in the Defense
Department with something and wants to make a complete defense,
they have to be able to defend themselves completely.
The bill is so written that the judge has no power to cut off any-
thing under this bill that significantly, or even at all, would affect a
fair defense of the defendant. If the defendant wants to bring out
anything, if it's the most serious secret in the world, if it's relevant to
the defense, and if you can't create a substitute for it by just agreeing
to give a summary, the judge is ordered, directed, commanded to tell
the Government, produce it, or dismiss.
That defendant walks free.
So as to your first concern, the bill is just written so that there is
no substantial right of any defendant that can be in any way com-
promised by the fact that that right is entangled with secrets.
Mr. VOLKMER. It's the subjective decision of the judge?
Mr. HEYMANN. Well, it's not very subjective. It's subject to appeal.
Mr. VOLKMER. It's subjective, a subjective decision on the judge's
part.
Mr. HEYMANN. Subjective?
Mr. VOLKMER. Sure it is.
Mr. HEYMANN. Well, no more so than every other decision. I mean,
he makes 100 decisions on what's relevant, what's important, things
like that.
Your second question is whether the public ought to know.
It is important, and my own guess is that the public will know far
more with a bill like this than otherwise, because trials will reveal infor-
mation, and cases that we would otherwise dismiss, we will bring because
we will be able to know in advance what the cost of bringing them is.
I think in cases like ITT and others, we will know whether we can
bring it or not, and the public will get more information because
trials reveal information. That's why we have public trials.
Mr. VOLKMER. Thank you, Mr. Chairman.
Mr. LERoY. Mr. Heymann has suggested that there ought to
be a different standard by which to determine admissibility of classified
information. You suggest a relevant and material standard. Are you
precluded now from using that standard in court?
Mr. HEYMANN. No, we are not, and that is why-and I know that
CIA said they'd go along with us on this.
I am prepared to leave that to courts in the future. We have not
had much success in convincing people. I believe we should let it lie
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where it is and make arguments where it seems proper that the rele-
vant and material is correct or not correct.
Ms. LERoY. Has the Department of the CIA ever argued that
position?
Mr. HEYMANN. I don't know of any national security case in which
that has been brought up. That is a standard that is applied if we are
dealing with an informant for the DEA or FBI.
Ms. LERoY. You are talking about the identity of the informant?
There is a common law privilege?
Mr. HEYMANN. Privilege; that's correct.
Ms. LERoY. But there is no corresponding state secrets privilege;
in fact, courts have rather explicitly held there was not.
Mr. HEYMANN. No; there's not a lot of difference in my mind; there's
not a lot of difference between a domestic informant and an overseas
source of information to us. They are both informants.
I am not saying that the informant's privilege, as such, covers all
national security secrets. I am saying that when you look at, let's say,
the history of rule 16 of the Federal.rules under discovery, it gives
judges power to modify discovery where needed. Then if you look
at the legislative history, it refers to informants, national security
information.
There's a lot of similarity between national security or State secrets
and informant; neither of them should ever go very far in changing a
rule that says they are relevant. But the informant rule goes a little
distance, and if you asked me what was right, I would say national
security should go a little distance.
Again, I don't mean to argue it, because I want the bill to move,
and as it is written, coming out of the House Intelligence Committee,
it doesn't give us anything on that. I want it to move, so I don't want
to ask for more. I think it's right, but I don't want to ask for that.
Ms. LERoY. No further questions; thank you.
Mr. EDWARRDS. Mr. Volkmer?
Mr. VOLKMER. If you didn't have this legislation, about how many
cases are going to be affected, average, in a year?
Mr. HEYMANN. Relatively few, Mr. Volkmer; we are probably
talking in the neighborhood of a half dozen to a dozen cases in a year;
but it understates the importance of the matter to talk about num-
bers, because the cases are national in their importance frequently,
and in the attention they command from the public.
The public knows far more about the spies Enger and Chernyayev
in New Jersey, about Kampiles, about the ITT case.
I don't know whether you went back and read it and looked it up,
but you remembered the names of the people in the ITT case.
't'hese are major cases with the consequence that the public gets
its notion of what's going on in the justice system from these cases.
If it looks like you can't prosecute anybody who has some national
secrets, that's important.
Mr. VOLKMER. Well, there's another case up in Indiana, a more
recent case?
Mr. HEYMANN. That was Kampiles.
Mr. VOLKMER. You did work that out?
Mr. HEYMANN. The situation there is very interesting. Many
courts would say that what we are asking you to legislate, Mr. Volk-
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mer, they can do now; but as in the ITT case, they would say they
can't.
Proceeding to do by legislation we are, one, trying to regularize
across the board What the court in Kam piles plainly felt it could do.
The second thing is to encourage judges to be inventive within the
bounds of an order to fully protect the defendant's rights.
Mr. VOLKMER. I would just like to ask the gentleman from CIA:
If a document has been classified top secret and it has been turned over
by a former employee, what-have-you, of the CIA to a foreign gov-
ernment, and that is known, spirited out of the country, gone. The
person is found out and criminal charges are brought.
That information then becomes knowledgeable to somebody else.
It's still classified, though?
Mr. CLARKE, Yes, sir. We would maintain that it is.
Mr. VOLKMER. Give me the philosophy behind that.
Mr. CLARKE. Well, take the Kampiles case as an example, in which
the highly classified manual was sold to the Soviets. The fact that the
Soviets have the manual does not mean that that information will
become known by any other government which may also find the in-
formation in the manual of some use.
In other words, the information still, we have to assume, will not
be disclosed to others who could use it to harm us.
Mr. VOLKMER. Like who?
Mr. CLARKE. The Chinese.
Mr. VOLKMER. The American people don't know it either?
Mr. CLARKE. Yes, sir; that's true.
Mr. EDWARDS. Mr. Heymann, I am prepared to support the bill. I
think it's a good bill.
I think there are a few questions that might come up a little later
on. What about some of these-well, addressing the Cointel cases
of the FBI probe, where there was alleged harassment and people
met with Dr. King and so forth; this information is generally classified?
Mr. HEYMANN. As the chairman knows, we have a major FBI
prosecution underway, a veritable nightmare of good faith or bad
faith graymail problems.
If an FBI official in the future were to engage in the Cointel
probe type illegal activities, without this bill, it would be difficult to
impossible to prosecute.
With this bill, it will be difficult, but perhaps not impossible.
One of the major functions of the bill, and I suspect one of the rea-
sons why the ACLU is so supportive of it, is that it would make it
possible to prosecute in that type of situation.
Mr. EDWARDS. What about the United States defending allegations
of harassment and violation of constitutional rights and privacy?
Mr. HEYMANN. The bill would still have no effect on a civil trial,
Mr. EDWARDS; it only affects the criminal trial.
Ms. LEROY. Have you had the Jencks Act as a problem in a national
security case that you are aware of?
Mr. HEYMANN. I can't remember now which one it is; it has not
been a major problem.
Mr. Volkmer is right in asking how many cases this will apply to
altogether. We're talking about something like 6 to 12 cases a year.
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This is not something that's a major wholesale change; it's more a
retail change.
Jencks has come up at most in one case. We can handle the Jencks
Act problem.
One of them is, we cannot call the witness, and so, in figuring out
whether the Jencks Act has come up, we have never succeeded in
convincing a court, I believe, to use the provision that we requested
here. In asking when the Jencks Act could come up-I mean to be
answering-I think we have confronted problems with the Jencks
Act in a few cases.
Ms. LERoY. You testified before the Intelligence Committee you
didn't have any such cases. If you have any, I would like you to in-
form the committee at some later point.
Mr. HEYMANN. There is one source of problem that we always have,
but we did not intend to deal with that by our present Jencks Act
provision.
In a major espionage case, it's a funny sort of problem. In a major
espionage case, we have to have witnesses that go on and testify that
the document revealed what is relevant to the national defense or was
material to the national defense, whatever this espionage statute
says.
Frequently the CIA and Department of Defense would like to use
the same witness to do a damage assessment of how serious it was
that the document got out.
If we are not careful, the damage assessment will be done first,
telling all sorts of additional secrets by Mr. Heymann; then we'll
call Mr. Heymann as a witness at trial; the defense will ask for his
Jencks Act statement; and a whole new set of secrets will be revealed
by the Jencks Act statement.
That's a problem we handle simply by making sure that the same
person doesn't do the damage assessment as testified.
Ms. LERoY. So there are ways to handle the problem without
changing the law?
Mr. HEYMANN. Yes.
I can think of cases where there wouldn't be another way to handle
it; but again, Counsel, I am such a bowl of jello on these additional
provisions, each of which I think is right, that it's almost hard to
get any good fight out of me.
I think the Jencks provision is absolutely right, I think it's right as
a matter of principle, but I want to see the bill moved.
Ms. LERoY. One last question: Some people who have been involved
in the development of the legislation suggest that to some extent the
bill places a burden on the trial judge that more properly belongs to the
executive branch. I am thinking of section 105, where the determina-
tion has been made that the evidence is admissible, that it's relevant,
and the Attorney General objects still to disclosure of the information.
The burden is put on the trial judge to fashion some sort of remedy,
whether it's dismissal of a count or whatever.
I guess what my question is, this shifting in the burden of the deci-
sion to prosecute, is it constitutionally permissible?
Mr. HEYMANN. As I read 105, Counsel, it does not allow the judge
to direct that the prosecution will go forward with the use of the
classified information. We would object strongly if it did allow a
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judge to say, yes, that classified information goes in and, yes, you shall
continue to prosecute.
As I read 105, or as I read it a little while ago preparing for the
hearing, it allows us to dismiss if we want to, it allows us to say, no, the
classified information will not go in.
Then it leaves it to the judge to determine the consequence of our
refusal to put the classified information in, and that seems to me to be
the traditional, correct judicial function.
The judge should not be allowed to order us to produce the classified
information publicly, and I hope and think 105 does not allow him to
order us to do that; but when we say we will not produce it, it ought to
be up to the judge to say what the consequence is for trial. I think 105
leaves that to him.
Ms. LEROY. No further questions.
Mr. EDWARDS. Thank you all very much for your excellent
testimony.
[Whereupon, at 11:03 a.m., the hearing was adjourned.]
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USE OF CLASSIFIED INFORMATION IN FEDERAL
CRIMINAL CASES--
TUESDAY, MAY 13, 1980
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
OF THE COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met at 2 p.m., in room 2237 of the Rayburn
House Office Building, Hon. Don Edwards (chairman of the sub-
committee) presiding.
Present: Representative Edwards.
Staff present: Catherine LeRoy, counsel, and Thomas M. Boyd,
associate counsel.
Mr. EDWARDS. The subcommittee will come to order.
This afternoon the subcommittee continues its consideration of
H.R. 4736, the proposed "Classified Information Procedures Act."
This legislation has attracted a broad range of support during its
progress through the House Intelligence Committee.
Recently we heard from the administration-not only the intelli-
gence agencies, whose responsibility it is to protect our national secu-
rity secrets, but the Justice Department, who is responsible for prose-
cuting individuals who may have access to those secrets and who may
seek to reveal them in the course of a trial.
The Intelligence Committee is deeply concerned with the need for
protecting national security information. The Judiciary Committee,
while no less concerned with our national security, also has the special
responsibility to safeguard the processes and institutions of the judicial
branch and to assure that legislation affecting those processes and
institutions does not impinge on rights guaranteed by our Constitution.
We are pleased to have with us today Morton Halperin, the Director
for the Center for National Security Studies, testifying on behalf of
the center and the American Civil Liberties Union.
With him is Mr. Allan Adler, legislative counsel for the center.
Over on my left is Michael Tigar, a lawyer here in Washington who
is defense counsel in the Humphrey-Truong espionage case. Both have
been involved in the evolution of H.R. 4736, and are very familiar
with the bill.
Without objection all of the statements will be made a part of the
record, and I welcome all of you gentlemen. I believe, Mr. Halperin,
you are going to go first?
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STATEMENT BY MORTON H. HALPERIN AND ALLAN ADLER ON BEHALF OF THE
AMERICAN CIVIL LIBERTIES UNION AND THE CENTER FOR NATIONAL SECURITY
STUDIES
Mr. Chairman, we appreciate the opportunity to appear today before this sub-
committee to testify on behalf of the American Civil Liberties Union and the
Center for National Security Studies on H.R. 4736, the proposed Classified In-
formation Criminal Trial Procedures Act.
As you may know, we appeared before the Subcommittee on Legislation of the
House Permanent Select Committee on Intelligence last August to present our
views on H.R. 4736. The concerns we expressed at that time with respect to the
bill as introduced have been satisfactorily addressed in the bill as reported by the
Permanent Select Committee on Intelligence in March of this year (see H.R.
Rept. 96-831, Part 1). Our testimony today, therefore, will briefly summarize
our present view of this legislation and the problem it is intended to remedy.
Although we share the Justice Department's expressed dismay over the prose-
cutions which have been undone by the "graymail" dilemma, we are somewhat
skeptical of the view that characterizes the Department as the helpless victim
of criminal defendants who are willing to sacrifice national security in order to
escape the process by which justice would otherwise be surely and swiftly ad- s
ministered.
The Department asserts that it is forced to abandon certain prosecutions be-
cause to fully pursue them would result in the disclosure of classified information
and consequent injury to the national security. The Department laments that it
faces the risk of such disclosure even though the information in question is irrele-
vant to the criminal charges presented or would in any event be inadmissible
with respect to any defense offered by the defendant. This unfortunate situation
arises because federal rules of evidence and criminal procedure as well as common
law tradition generally require that the relevance and admissibility of proffered
evidence must be argued and decided in open court.
To the extent that the Department's "graymail" frustrations result from this
procedural requirement, H.R. 4736 offers a reasonable procedural solution that
does not infringe upon the defendant's constitutional fair trial rights. It provides
a statutory framework for resolving criminal trial questions of relevance and
admissibility with respect to classified information in a manner that assures that
such information will not be unnecessarily disclosed when it is irrelevant or
inadmissible, nor unfairly denied to the criminal defendant when it is relevant
and admissible for the presentation of defense.
The procedure created in H.R. 4736 clearly places a new burden on the defense
by requiring the defendant, prior to any trial or pre-trial proceeding, to notify the
Government and the court of any intention to disclose or cause disclosure of classi-
fied information at such proceeding. It also requires the court to grant the Govern-
ment's request for an in camera proceeding to resolve questions of relevance and
admissibility with respect to such classified information. However, it balances
these burdens by providing for reciprocity on the part of the Government with
respect to its own evidence and witnesses to be offered in rebuttal if the classified
evidence is ruled admissible. It also provides for a "bill of particulars" to be pre-
sented to the defendant by the Government upon request, identifying the provision
of the indictment of information to which the classified information at issue relates.
This latter provision would have proven quite helpful to the defendants in the
"Pentagon Papers" prosecution of Daniel Ellsberg and Anthony Russo and in the
trial of Ronald Humphrey and David Truong.
Most importantly, the procedure created in H.R. 4736 does not in any way alter
the evidentiary standards for relevance and admissibility in deference to the classi-
fied status of the evidence at issue. It also prevents the Government from using any
explanation of the classified status of the information or evidence to improperly
influence the court's determination with respect to relevance and admissibility.
Although the proposed statutory procedure would permit the court, upon the
Government's request, to order that the defendant receive only a summary or
"a statement admitting the relevant facts" in substitute for specific classified infor-
mation which is concededly relevant and admissible, it adequately seeks to aviod
prejudice to the defendant by authorizing such action only upon the court's finding
that the substitution "will provide the defendant with substantially the same ability
to make his defense as would disclosure of the specified classified information.'
Where the court denies a Government request for substitution and the Govern-
ment files an affidavit objecting to disclosure of the classified information, the
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court must order the defendant not to disclose or cause disclosure of the informa-
tion; however, in such instances, as in instances where the Government simply
refuses to deliver admissible evidence to the defendant, the bill requires the court
to dismiss the prosecution or provide other appropriate sanctions if "the interests
of justice would not be served by dismissal * * *"
As noted at the outset, we are not convinced that the Justice Department's
"Graymail" problems are wholly a result of any procedural Catch-22. To the
extent that they are not, H.R. 4736 or any other procedural measure will prove
unavailing as a solution to "graymail".
We believe that there are other factors which significantly contribute to "gray-
mail". Present policies which allow abuse of the classification system and unques-
tionably result in overclassification of information lend credence to even the most
dubious claim that a defendant possesses "classified information", causing the
Justice Department to hesitate in proceeding with any prosecution where a threat
of disclosure is made. This is particularly true where the defendant has or had
some direct or even indirect relationship with an intelligence component of the
Government. Thus overclassification results in constant pressure on the Justice
Department from intelligence components of the Government when there is even
a remote possibility that classified information could be involved in a prosecution.
The unnecessary overabundance of classified information not only allows virtually
any defendant who worked for the Government to plausibly threaten disclosure
of classified information, it also causes the Justice Department and the intelligence
agencies to assume the legitimacy of such claims in order to play it safe.
Since most of the known "graymail" cases have involved government personnel
who were either original defendants or were implicated in illegal activities by
criminal defendants (i.e., the Helms and Berrellez cases), uneasy political questions
arise which cannot be addressed by legislation. Such questions cast a shadow
over the fair administration of justice by the Federal government and can only
be answered if the Justice Department demonstrates to the American public
its resolve to treat all criminal defendants, regardless of their present or past
affiliation with the government, as equal before the law and equally subject, to
the full extent of the criminal process. The reporting requirements in H.R. 4736
will play a significant role in this regard by assuring accountability outside
the Executive Branch when prosecutions are dismissed assertedly to prevent
disclosure of classified information.
We will be happy to answer any questions.
TESTIMONY OF MORTIN H. HALPERIN, ON BEHALF OF THE AMERI-
CAN CIVIL LIBERTIES UNION AND THE CENTER FOR NATIONAL
SECURITY STUDIES, ACCOMPANIED BY ALLAN ADLER, LEGISLA-
TIVE COUNSEL FOR THE CENTER FOR NATIONAL SECURITY
STUDIES; AND MICHAEL E. TIGAR, ATTORNEY, TIGAR & BUF-
FONE, WASHINGTON, D.C.
Mr. HALPERIN. Thank you, Mr. Chairman.
We appreciate the opportunity to appear here on behalf of the
Center for National Security Studies, as well as the ACLU.
As you know, we testified on the early version of this bill before the
House Intelligence Committee as well as the Senate Judiciary Com-
mittee and presented to that committee a number of concerns that
we have which we feel were adequately, satisfactorily addressed in the
committees' reporting out of that bill.
As you know, Mr. Chairman, our general view is that problems of
"graymail," that is, the failure of the executive branch to prosecute,
is in large part a matter of political will. We think that they could have
gone ahead in prosecutions that have been dropped in the past, and
we think they probably should go ahead with prosecutions in the
future, even if this bill is not passed.
Nevertheless, we think that the bill will increase the likelihood that
prosecutions will go forward against former and present Government
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officials who violate citizens' rights, or who commit perjury or other-
wise break the law, and who might otherwise be beyond the reach of
the criminal law because of the threat of graymail.
What the bill basically does is to establish regularized procedures
which, I think, most importantly give the Justice Department and
intelligence agencies a. sense of confidence that they can have a rea-
sonably good idea before a trial begins what classified information they
are likely to have to make public during the course of the trial. This
will increase the leverage of the Justice Department. It will be able to
insist on going forward with an indictment, with the opening of a
trial in order to get those rulings from the court. Then based on the
knowledge of what has to be released, the Government can make a
decision about whether to go forward or not.
We think it is important that those new procedures not infringe in
any way upon the defendant's constitutional rights to a fair trial,
and we think the bill does that.
Mr. Tigar suggests there are ways that it might be improved some-
what, but, recognizing that one always has to strike a balance here,
we think that the bill does in fact provide adequate protection for the
constitutional rights of the defendant.
It does place new burden on them, of reporting in advance of
trial what classified information they would have to use. This is bal-
anced by reciprocity on the part of the Government in the requirement
for a bill of particulars and a requirement specifying how they will
answer that information in the record, and we think these provisions
provide an adequate balance.
There also is, I should point out, a separate and independent require-
ment in the"bill for cases in which classified information is involved,
where the Government has the burden of proving that information
is properly classified and relates to the national defense. In those cases,
the Government would have an obligation, independent of the other
procedures, to provide a bill of particulars specifying which pages of
the document in question it intends to rely on at trial.
I had the pleasure of testifying as an expert witness for David
Truong, and was examined by Mr. Tigar. My view is-and I think
it is one that he would share-that that provision would have been
of significant value to us in knowing what information the Government
was going to present, and, therefore, be better able to prepare for trial.
I was also involved in the Pentagon Papers prosecution, and there
again, the lack of such a requirement and the failure of the judge to
order a bill of particulars placed a heavy burden on us in trying to
prepare for the trial.
I think it is important to emphasize what the report of the House
Intelligence Committee does: The bill does not in any way alter the
evidentiary standards for the discovery of information or the admis-
sibility of information because the information is classified.
I think the bill makes clear, and the report underlines, the standards
will remain the same, that classified information will be treated as any
other information.
As I see this bill, basically what it deals with is the problem that
normally when you are talking about information which may or may
not be relevant, the problem is simply to keep it from the jury. There-
fore, you can have during the trial a hearing outside the presence of
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the jury to determine whether it's relevant. but when you are dealing
with classified information, the Government's problem is to keep it
from being made public, rather than keeping it from the jury.
I think what this bill basically does is to provide a procedure which
is fair, which is a full, adversary procedure, but which enables the
Government to get a ruling in an orderly way from the court, in
camera, without the information being made public, as to whether or
not the information is relevant to the issues at the trial. If it's rele-
vant, it has to come in, and the Government still has to dismiss or go
forward. If it's not relevant, it's gotten that ruling in a way that
does not in any way jeopardize the release of the information.
My view is that this kind of procedure is most relevant in cases
involving former Government officials, that its use in espionage cases,
that is, an allegation of the transfer of the information, would be very
narrow and would not in any material way affect the defendant's
rights in such cases.
I think, in summary, that the House Intelligence Committee has
done a job which has produced a bill which in most respects conforms
to what we would like and I think, on balance, is a satisfactory pro-
posal which I would urge this committee to move forward with.
There was at the last minute some reduction in the reporting re-
quirements in the bill, and I think it would be useful if the committee,
in whatever report it issued, if it does issue a report, to made it clear
that reporting is an important element, and that the Justice Depart-
ment remains under an obligation to make clear to the Congress why
it is not going forward with prosecutions.
I appreciate the opportunity to testify, and I, of course, would be
glad to answer your questions.
Mr. EDWARDS. Thank you, Mr. Halperin.
I believe we'll hear now from Mr. Tigar.
Mr. TIGAR. Mr. Chairman, my views on this bill and its earlier in-
carnations were contained in testimony Which I gave on August 7,
1979, before the Intelligence Committee. I have attached to my pre-
pared testimony a copy of that set of views.
Mr. EDWARDS. Without objection, the entire statement will be made
a part of the record.
[The material follows:]
PREPARED STATEMENT BY MICHAEL E. TIGAR, TIGAR & BUFFONE
,
+ A PROFESSIONAL CORPORATION
I am attaching a copy of my testimony of August 7, 1979, on H.R. 4736, H.R.
4745, and S. 1482. 1 continue to adhere to the views expressed in that testimony.
The questions of state secrets and official information were before this committee
during the 1973 hearings on the proposed Federal Rules of Evidence. At that time,
the Supreme Court had sent over draft Federal Rule of Evidence 509, which had
been skewed heavily in favor of the Government by the Nixon Justice Depart-
ment's intercession in the rule-drafting process. Because the proposed rule brought
with it the controversy surrounding the administration's captious invocation of
executive privilege in the Watergate context, the Congress quite rightly rejected it.
At the same time, the Congress abandoned all legislative effort to deal with
questions of evidentiary privilege in the Federal Rules of Evidence other than in
the very general terms of current rule 501, which reads:
"Except as otherwise required by the Constitution of the United States or
provided by Act of Congress or in rules prescribed by the Supreme Court pursuant
to statutory authority, the privilege of a witness, person, government, State, or
political subdivision thereof shall be governed by the principles of the common
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52
law as they may be interpreted by the courts of the United States in the light of
reason and experience. However, in civil actions and proceedings, with respect to
an element of a claim or defense as to which State law supplies the rule of decision,
the privilege of a witness, person, government, State, or political subdivision
thereof shall be determined in accordance with State law."
The rulemaking and legislative activities surrounding proposed Federal Rule
of Evidence 509 are summarized in 2 Weinstein and Berger, Weinstein's Evidence
11 509[01], 509[02].
H.R. 4736 if enacted would, of course, be an "Act of Congress" within the meaning
of Federal Rule of Evidence 501. In general, I believe it preferable to achieve
H.R. 4736's goals by appropriate amendments to the Federal Rules of Evidence
on the scope of the evidentiary privilege, Federal Rule of Criminal Procedure 16 on
discovery procedures, and 18 U.S.C. ? 3731 on the government's right to interlocu-
tory appeal in criminal cases. Treating cases involving national security as sui
generis, for no matter what laudable reason, risks enhancing the mystique of secrecy.
This mystique has been a powerful and freedom-threatening weapon in the hands
of the Nixon and-I regret to say-Carter Justice Departments.
But if there is to be a bill-which appears likely=the following are the prob-
lems with H.R. 4736:
1. Substitution, under ? 103, of a government-drafted summary for relevant
and admissible classified information creates a procedure unlike that followed in
any other area of the law of evidence, and vests tremendous discretion in the
hands of trial judges, to he exercised upon the basis of ex parte government sub-
missions. This alternative exception is broad enough to threaten swallowing the
rule.
2. As I pointed out on August 7, 1979, the ? 108 provision for appeal should
be hedged about with the same limits now contained in 18 U.S.C. ? 3731 with
respect to all government appeals.
3. The rulemaking procedures prescribed in ? 110 give disproportionate weight
to the view of the Attorney General and the CIA, those most interested in secrecy.
A preferable alternative would be that employed for all other judicial rulemaking
functions-that is, an advisory committee drawn broadly from the bar and re-
porting to the entire Supreme Court of the United States.
On August 7, 1979, I pointed to some of the positive features of the bill, con-
trasting it to other legislative proposals then pending. I take it as a good sign
that the bill permits invocation of the classified information procedure only for
material so designated tinder appropriate statutory and regulatory provisions.
The definition in ? 113 would prohibit the government from post-hoc classifica-
tion markings in an attempt to secure a procedural advantage. As well, the bill
imposes upon the government a number of duties that conduce to a fair trial.
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GRAYMAIL LEGISLATION
HEARINGS
SUBCOMMITTEE ON LEGISLATION
PERMANENT
SELECT COMMITTEE ON INTELLIGENCE
HOUSE OF REPRESENTATIVES
NINETY-SIXTH CONGRESS
AUGUST-7, 1979
SEPTEMBER 20, 1979
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : It SO
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STATEMENT OF MICHAEL TIGAR, ESQ., TIGAR & BUFFONE
.Mr. TIGAR. Thank you, Mr. Murphy, Mr. McClory.
I have a prepared statement which I have furnished to the com-
mittee, and I will not tax your patience or burden the record by read-
ing it to you.
lair. MuRrHY. Without objection it will he ordered.
Mr. TIGAR. I would like it made a part of the record, thank you very
much, Congressman.
[The prepared-statement, of Michael E. Tigar follows:)
PREPARED STATEMENT BY MICHEL E. TIGAR
I appreciate the opportnuity to appear again before the Committee now that
the draft legislation has been prepared. I will not repeat the observations of
7lorton H. Halperin, with most of which I agree.
I have viewed these, bills from the perspective of a trial lawyer and law teach-
er.'As I said in. my, last appearance here, any legislation on the use of classi
Sed information in 'criminal prosecutions should be both narrowly drawn and in-
tegrated with.the existing mechanisms for pretrial rulings, on evidence and pre-
trial determination of disputed issues of law. The bitter experience of other
nations teachers us that creation of a special body of law for offenses Involving
the security or secrets of the State tends to foster repression. The example of the
Soviet Union comes readily to mind, but the experience of France is perhaps more
Instructive: the creation of a special tribunal with special procedures for offenses
involving the "security of the State" has contributed to distortion of the criminal
process. Judge Learned Hand In United States v. Coplon, 185 F.2d 629 (2d Cir.
1950), warned against invoking the"national security as a reason for limiting
a defendant's right to contest allegations against him or her.
Moreover, to the extent that the Committee's objectives can be attained by In-
tegrating its proposals into the Federal Rules of Criminal Procedure and the Fed-
eral Rules of Evidence, the Congress will have ensured that this legislation Is
subjected to continuing review by the distinguished lawyers and judges who made
up the Advisory Committees on the criminal rules and on evidence by the
Supreme Court of the United States, and by committees of the Congress. Such
continuing review Is particularly helpful when one is seeking, as here, to chart
new paths and to bring order out of a conflicting body of case law.
What I have said underlies my support for the concept of H.R. 4736, although
not for all of its provisions, and my opposition to H.R. 4745 and to the companion
I: H.B. 4736
? Section 101 provides an orderly means for determining important Issues arising
In cases involving classified Information. This section should, however. be legis-
lated Into existence as a part of existing Federal Rule of Criminal Procedure
17.1, - dealing with pretrial conferences. The mandatory provisions of ? 101
could then be Included, but It would be clear that admissions made by the de-
fendant or his attorney could not be used against the defendant unless reduced to
writing and signed. Such a provision would encourage free and open discussion of
disputed issues.
_ Section 102 provides a mechanism'-for pretrial ruling on the admissibility of
evidence 'as to which the government claims some sort of executive or state
secret privilege. Such pretrial determinations of relevancy are to be encouraged.
It would be fruitless -to hope, and the Committee's bill does not seem to envision,
that all relevancy determinations can be made pretrial. Unanticipated lines of
cross-examination, to give an example that comes readily to mind, may require
rulings during trial. But the procedure outlined in ? 102 seems, on the whole, to
be fair. I would suggest that the Committee incorporate ?102 into the Federal
Rules of Evidence. Not only would this provide the continuing, review of, which
I.spoke earlier, but it would indicate to trial judges that relevancy determina-
tions Involving classified Information are no different from those involving any
other sort of proffered evidence. It Is not, I trust, the intent of this bill to
change the rules of evidence on admissibility. If classified Information Is relevant
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to any claim or defense, or is useful In the cross-examination of any government
witness, a defendant has all absolute compulsory process and confrontation
clause. right to use it. (See generally 1'. Westen, Compulsory Process, 73 Mich.
L.Rev. 71 (1974) ; P. Wester, Compulsory Process, If, 74 Mich.L.Rev. 191 (1975) ;
P. Westen, Confrontation and Compulsory Process: A Unified Theory of Evi-
dence for Criminal Cases, 91 Harv. L. Rev. ::97 (1975 ).) If the government wishes
to rely on Its privilege against disclosure of such information, the rule under
H.R. 4736 continues to be that the government must pay the price In terms
of dismissal or an adverse finding as to some Issue. Therefore, the procedures
outlined in ? 102 should be included in Articles 4 and 5 of the Federal Rules of
Evidence.
I am concerned about the provisions of ? 103. Despite the cautionary Iangua;e,
"that the defendant's right to a fair trial will not be prejudiced thereby," I feel
1 this section may be seen by trial judges as all invitation to restrict the right
of cross-examination. Moreover, treating classified information differently from
other kinds of evidence enhances the mystique of the classification stamp and.
therefore Inevitably favors the prosecution in a criminal trial. If such restric-
tions are to be enacted, I would prefer the section to read "the Court shall not
grant such a motion of the United States unless it finds that the defendant's
right to a fair trial will not be prejudiced thereby." But, as I say, making
special rules about classified information runs counter to reason and experience.
(See generally United States v. Coplon, supra.) If any procedure that is outlined
In ? 103 is to be provided,, it should be a part of the Federal Rules of Evidence.
Section 104 does provide for preservation of records by the Court instead
.of by the government and Is therefore preferable to alternative versions. Its
terms should be Incorporated either into Federal Rule of Criminal Procedure
12 or into the Federal Rules of Evidence.
Section 105 enacts. what I understand to be existing federal law. However,
for clarity, the sanctions for. refusal to disclose in a discovery context should be
made part of Federal Rule of Criminal Procedure 16, and. those relating to
refusal to disclose is a trial context should 'be made part..of the Federal Rules
of Evidence. Section 105(b) (3), should, in any case, be clarified to express the
Committee's Intention that the government may not rely upon any part of the
testimony of any witness relating to classified information which the government
has refused to disclose.
Section 106 is reasonable, but should be Incorporated into the Federal Rules
of Criminal Procedure.
Section 107 Is also reasonable, but should be incorporated into the Federal
Rules of Criminal Procedure.
. Section 108 provides for an Interlocutory. appeal by the United States before
or during the trial.' All such appeals Implicate the defendant's right to a speedy
trial. A .mid-trial appeal also enhances the classified Information mystique I
referred to earlier. The bill does not provide for expeditious determination of
pretrial appeals, and even the time limits on ntid-trial appeals risk meeting the
same fate as befell the mandatory time limits tinder 28 U.S.C. ? 1S2G(b), part of
the Crime Control. and Safe. Streets Act.of 1970. All this aside, any additional
grant of pretrial appeal rights to the United States should be incorporated Into
the existing terms of IS U.S.C., ? 3731' and be subjected to similar limitations.
That is, the-Attorney General should certify te-the distt-iot court not only. thatthe
appeal Is not taken for purpose of delay and that "the evidence is a substantial
proof of a fact material in the proceeding." Pretrial appeals should be given cal-.
ender preference In the court of appeals. Most important, the provisions of ? 3731
on pretrial release should be followed ; that is, if the government wants a pretrial
appeal with its attendant delays, an incarcerated defendant must be released on
bail. Moreover, it might well promote the orderly administration of justice to give
both the prosecution and the defense the right to appeal, perhaps subjecting both
of them to the certification provisions now applicable to civil appeals of interlocu-
tory orders tinder 28 U.S.C. ? 1292 (b).
Section 109 should be incorporated into the Federal Rules of Criminal Proce-
dure and ? 109 (b) should contain.the caveat that no deletion, substitution, or sunt-
marizntion can-be done so as to interfere with the due process, confrontation and
cross-examination rights of the defendant.-
Section 110.(a), providing for rule-making by the Supreme Court of the United
States, Is. a far preferable formulations to the. H.R. 4745 provision that the Chief
Justice alone make the rules. This well expresses my concern that this legislation
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56
minimally disrupt the existing system for determination of disputed questions,
and be subject to continuing review in the same way as other federal procedural
rules.
Section 111 should be inserted as an additional subsection of Federal Rule of
Criminal Procedure 16 or as an additional sentence in Federal Rule of Criminal
procedure 7 (f ). I am In favor of the no-delegability provisions of ? 111.
The definitional section, ? 113, should be Integrated into the appropriate fed-
eral rules.
Perhaps the key to H.R. 4745's defects is in ? 3, which concludes "promote a fair
and expeditious prosecution," as opposed to "a fair and expeditious trial." These
two bills reflect a lack of confidence in lawyers and district judges, provide
unusual and unduly complex procedures to achieve their ends and seriously
threaten the right of fair trial.
For example, ? 6(c) (2) of H.R; 4745 completely ignores the defendant's right
to cross-examination on the bins, interest and prior conduct of n government wit-
ness and restricts the use of classified information solely to matters relevant to
an element of the offense or to a "legally cognizable defense".
Iloth bills vest rule-making authority in the Chief Justice of the United States.
Not only does this provision eliminate any deliberative function the Supreme
court as a whole might be able to contribute, but'it bypasses the function typi-
cally .perfornmed by Advisory Committees appointed by the Court and dispenses
with the oversight function of the Congress.
Section 10 of both bills represent an unconstitutional Invasion of the defend-
nit's right of cross-examination,. and would thrust an intolerable burden on
trial judges:?As the Supreme"Court said in Dennis v_ .United States, 3S4 U.S:
55Z, $74-75 (1966) : "Nor is it realistic to assume that the trial court's judgment
as to the utility of material for Impeachment or other legitimate purposes,
however conscientiously made, would exhaust the possibilities. In. our adyer-
cars system, it is enough for judges to judge. The determination of what may
be useful to the. defense. can properly and effectively be made only by an
advocate." .
This point is. well made by Dr. Halperin In his, testimony, based on experiences
which both of us have had in the Federal courts.
Mr. TIGAR. The committee's deliberations and the hearing that I
attended earlier. are well reflected in the bill that has been introduced
as H.R. 4736, and the bulk of my comments have to do with that bill.
Basically, Ihave no problems with most of the legislative proposals
contained in H.R. 4736. But I would urge upon the committee that all
of the provisions with respect to pretrial conferences, rulings on ad-
missibility. of evidence. and the scheduling of discovery in criminal.
cases could. be legislated into. the Federal Rules of Evidence and the
Federal Rules of Criminal Procedure rather than made a separate part
of title' 18 or a separate set of legislation-altogether. I urge that on the
committee for the following reasons.
,Some of these procedures are new and untried. By putting them into
the Federal Rules' you insure first, that on an annual basis these pro-
visions are reviewed by the distinguished law professors and judges
who are a part of the advisory committees on the rules; second, the pro=
visions are subleot to review by all the Justices of the Supreme Court
of the United States in its deliberative function; and finally, if there
are necessary changes to be made, the provisions are subject to review
by this House, because this House obviously has to pass on proposed
amendments ,to those rules. That insures not only that this House per
fornas,the.vital,oversight function entrusted to this committee and to
the Committee on the.Judiciary, but.that automatically you have the
input fromthose most immediately concerned with the day-to-clay op-
eration of this committee.
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For example, section 101 of your bill could as well be an amendment
to rule 17.1 of the Federal Rules of Criminal Procedure, and so on. .
My concern with your bill begins with section 103. That permits:the
court to order the substitution for classified information of a statement
admitting relevant facts, or the substitution of a summary of specific
classified information. I grant you that there is the caveat of finding
that the defendant's right to a fair trial would not be prejudiced, but
I am concerned; for example, about-the problem'of cross-examination
Where the Government is conducting an espionage prosecution or any
prosecution in which a witness is tendered by the Government who has
had access to classified information
much of the impeachment material
,
that a cross-examiner will want to use may be classified. That was cer-
tainly the case in United States v. Truong. We have now discovered,
Mr. Murphy and Mr. McClory, by virtue of an admission by the Gov-
ernment in the U.S. Court of Appeals for the Fourth Circuit, that the
Government withheld from us Jencks Act material on the Govern=
anent's principal witness relating to her movements in Paris during a?
critical time.
? No one but an advocate knows how to use information about what
precisely a witness did. This was especially true in the Tr-uong case,
where the transmission of classified information constituted the gist of
the alleged offense. I do not say that this withholding of information
was intentional, but the CIA was telling the Justice Department that.
they had everything, and that?turned out to be not suite true.'
Imagine the situation in which the trial judge is confronted with
language like section 103, and the Government, ex parte and in camera
according to your bill, urges the court, "After all, this isn't really
going to%e terriby helpful to the defense, you can furnish them with
a -summary of the reports the witness filed at a prior. time." Imagine
the trial judge trying to make that determination basically in'inno-
rance of what the defense strategy is and without the benefit of an avo-
cate's view of the trial. That is my concern with section 103. The rest
of the procedures for reviewing these. determinations provide ample
protection for the Government. .- .
My point is that if the evidence is relevant and admissible, that is,
if it meets one of these three standards: It is either in support of the
,prosecutions theory, in support of the defense theory; or usable for
cross-examination or impeachment, then it ought to be turned over. ,If
it doesn't, it needn't be turned over.
hwelcome the approach in section 105 with respect to sanctions when
the Government refuses. to 'turn over information. A much better job
has been done there than in the bill that has been introduced as? H.R.
'4745 and the Senate bill. I would urge that 105 (b) (3) be clarified'to
express ? the committee's intention that the Government cannot rely
on any part of the testimony of any witness relating to classified in-
formation which the Government has refused to disclose. I think it
is your intention not to let the Government introduce the directtesti-
mony of the witness,'for example, and then not produce usable cross-
examination material.
With respect to section 108, this is niot- the first time this House has
confronted the problem of givinn the Government a right to interlocu-
tory, pretrial appeal or with the problem of expeditious. appeals in
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proceedings in criminal cases or ancillary to criminal cases. Most of
those legislative efforts, in my experience, have not worked in the N-,-ay
that the House wanted them to work. In the Military Selective Service
:Act of 1967 you tried to provide docket preference for Selective Service
cases and nothing came of it. The courts ignored what both Houses of
the Congress said. In 28 U.S.C. 1826, Organized Crime Control and
safe Streets Act of 1970, you provided for docket preference and a
:30-clay time limit on appeals in contempt matters, Where the contempt
occurred before a grand jury. The courts of appeals simply ignored
this. I know of no case in any court of appeals in which the court said,
"We have to get our opinion out in a hurry because the Congress told
its to."
I don't know what'to do about that. You can't ask the judges to hold
themselves in contempt for violating the law, but it raises u problem.
Therefore, I approach these interlocutory appeals warily. If you
,%-ant to do this, you cause minimal disruption to the.sy stem and create
a substantial disincentive for the abuse of this power if you make sec-
tion 108 a part of existing 18 U.S.C. 3731. That section provides
for the Government's right of appeal in criminal cases generally. Spe-
cifically, and as an example, it provides for interlocutory appeals on
search and seizure matters where the judge has suppressed some evi-
dence. If you integrated your procedure into section 3731, you acid,
first, that the .Attorney General would have to certify, as in. the pre-
trial interlocutory appeal on motions to suppress, that the evidence is
a substantial proof of a fact material in the proceeding, and. that the
appeal is not taken for purposes of delay. That would have some disin-
centive for frivolous appeals.
Second, you. don't have a time limit under 108 (b) (1) for an appel-
late decision on a pretrial appeal. You just provide the appeal has to
be taken within 10 clays. Now, section 3731 requires that a defendant
be released on bail when the Government takes a, pretrial appeal after
a motion to suppress. All constitutional speedy trial, and serious
Speedy Trial. Act problems aside, the quid pro quo has to be that if
the Government wants a pretrial appeal on one of these issues, it has
to let the. defendant out on bail because it is not fair to have an in-
carcerated defendant while the Government exercises rights of
appeal. .
Espionage is perhaps tine most serious crime to which this bill
would apply: This will raise the issue of an espionage defendant being
out on bail Justice Brennan, in releasing David Truong, pointed out
the constitutional standards there. I think you will find in a review of
history that espionage defendants tend to make fairly good bail risks
as a matter of fact, ?or all sorts of reasons. Sometimes in Soviet cases
it is because their Government guarantees that they are going to be
there, and their Government doesn't want to provoke an international
incident. In other cases, the watchfulness of the FBI it seems to me
. is going to be your guarantee.
I am left then with 108 (b) (2) which provides for an interlocutory
appeal during the trial. I don't know what one does if the court of ap-
peals simply.doesn't decide within 4 days of the argument, and a
jury is waiting to hear further evidence. Although this is not in my
prepared statement, one night provide that if the court of appeals
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hasn't decided within the 4 days, the trial judge's order shall be final
as against the Government and the trial must proceed. Serious con-
-stitutional.questions are raised by interrupting a jury trial at all, as
well as serious speedy trial questions if these delays become too cum-
bersome. I would hate to see a delicately worked out mechanism falter
because the courts of appeals, as they historically have, don't do what
th should.
Section 110(a), regarding the Supreme Court's rulemaking au-
thority with respect to protection of documents, is far, far preferable
to the H.R. 4745 procedure and the Senate bill procedure that have
the Chief Justice of the United States making rules. The Supreme
Court itself is an unrepresentative institution. The Chief Justice at
any particular time may be of one political persuasion or another, and
the committee has done well in making the provision of the rules sub-
ject to the same process that applies to the civil rules, criminal rules,
and' miles of evidence. In those instances the Supreme Court, as a
deliberative body with advisory committees, makes the determina-
tion. The history of those rules and their operation and practice has
shown the wisdom of providing the full Court with input from the
legal profession.
Mr. Chairman, members of the committee, H.R. 4745 is a bad bill.
I regret very much to say that I can't find anything good to say about
it except where its. language happens to track the language of II.R.
4736. H.R. 4786 at least reflects it trial lawyer's judgment and the
hearings that. have been held here and.is.based on the finest traditions
of the deliberative function of the Congress. H.R. 4745 is the Justice
Department's bill and it reflects Justice Department bias. For ex-
ample, under section 4(a) (iv) of H.R. 4745, a protective order can
require security clearances for persons having a need to examine in-
formation, which gives the court control over who is going to partici-
pate in the defense of a criminal case.
Now, I know that has been done. Some lawyers have been willing
to go through the clearance process as a predicate to their represent-
ing a client and have had the members of their defense team go
through the clearance process. I think that interferes with the de-
fendant's right to counsel of his or her choice.
Section 6(c) (2) provides that unless the court makes a specific
written determination that the information is relevant and material
to an element of the offense or a legally cognizable defense and is
otherwise admissible in evidence, the information may not be dis-
closed or elicited at a pretrial or trial proceeding. That- is the standard.
Mr. Chairman, that is unconstitutional. Any Supreme Court you
want to choose would invalidate that in a smooth running minute, and
I mean from the time of John Marshall down to this good day. It ig-
nores the fact that information which isn't relevant to an element of
the offense or to a specifically cognizable defense may nonetheless be
producible by the Government and-usable in cross-examination of a
witness for bias or prejudice.
Mr. McCrory. I thought we had testimony earlier that in the rape
case we amended the law with regard to the manner of proof and
limited the defendants with regard to-
Mr. Trcert. Unohast.ity.
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Mr. MCCLORY. Evidence against the victim. that we were able to
modify by statute the rules of evidence, and that, consequently, we
,:olild do the same thingp- here by adding the word "material" as well
as relevant and material.
Axe we talking about the same thing?
Mr.TIGAR. Congressman McClory, we are talkiiig about. the same
kind of issue. Let me try to say what I perceive to ge the distinction
between those two cases.
IIistorically, the defendant's right to cross-examine the prosecutrix
as to prior acts of unchastity in cases involving unconsented sexual
contact-has been one of those mutants or spores in the law. Prior uii-
chastity is not, strictly speaking, relevant to the question of whether
on it particular occasion defendant forced his attentions on the pro-
secutrix. The legislation with respect to that subject, therefore, is a
kind of codification of an "other crimes" or '`reputation" question.
Mr. McCLORY. You don't think it is a valid analogy then.
Mr. TIGAR. No, I don't. What we are speaking of here is the ques-
tion, for example, of whether or not a Government witness has on a
prior occasion deliberately falsified records or testimony with respect
to the conduct of somebody else. Now, that prior instance of false-
hood may have involved some covert mission on which the witness
was engaged, but that prior willingness to put aside regard for the
truth in favor of doing what one's Government says is the sort of
relevant information winch the Supreme Court has said you have a
constitutional right to make inquiry into.
. Mr. MCCLORY. Well, when I read .dir. Heymann's statement that
lie delivered before the committee, I questioned whether or not we
had the right to add words into a statute which would change the
measure of proof, and yet he spoke very convincingly in support of it.
But you question, I mean, you just think the Supreme Court would
throw that out as unconstitutional.
Mr. TIGAR. The leading cases on the defendant's right to disclosure
of information relating to a witness's propensity to tell the t.rutdi, and
a witness's bias and prior record were authored by Chief Justice Bur-
ger himself.
Air. MCCLORY. So you think. we should just omit the words "and
material" I
Mr. TIGAR. I don't think you should pass H.R. 4745 at all, to be
frank.
Mr. MCCroxr. But on the precise point to which you are addressing
yourself, your statement is that adding the words "and material"
makes the law unconstitutional, at least that part of it.
Mr. TIGAR. No. Information may be immaterial to an element of the
offense or a legalliy cognizable defense, but still relevant to the bias
or prejudice of a witness under cross-examination. You would have to
add words to that effect.
I cite in my statement Peter Westen's article in Harvard Law Re-
view, "Confrontation and Compulsory Process" and his two prior ar-
ticles on compulsory process. I don't mean to get everybody reading
Law Review articles, but Professor Westen has done an admirable job
of summarizing the law in those articles as well as arguing his position.
Maybe this Harvard article was published after Mr. Heymann left
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61
11arvalcl and carne to Washington, so it didn't come across his desk.
But it takes a position that is very different from what he took before.
this committee.
This is by no means an exhaustive list, but both the Senate bill and
H.R. 4745 amend the Jencks Act. llr. Halperin was here this morning
and recounted in his prepared testimony some reasons why that is un-
satisfactory. That recounting was based on conversations that he and
I and some other lawyers have been having over the last several months
as we have been thinkinn about these problems in an effort to be useful
to the.committee if called upon, so I won't repeat it.
? The cross-examination of Government witnesses is not only a de-
'fendant's sacred right, it is the most important part of a criminal trial
as far as I am concerned, amid limiting the Jencks Act in this way essen-
-tiall imposes the trial judge's tactical judgment on the ndi oca.te's
-tactical judgment. After all, a trial is not strictly a rational process in
'which you count up a bunch of facts. The demeanor of the witness, as
the witness is being taken through even prior consistent. statements,
:may be relevant to the jury's determination. Little changes in -wording
and nuance between the witness's prior consistent statement and what
the witness says on the stand maybe relevant in the hands of a. skillful
advocate.
That, it seems to me, is why this section is unwise, and may raise
some constitutional problems to the extent that one rewards the Jencks
Act as based on the Jencks decision, which hasa constitutional is well
as Federal supervisory-power footing.
That is the extent of what I came prepared to say. I would be
pleased to answer any questions that the members of the committee
might have.
Mr. 'Hurd-illy. Mr. Tigar, sections S (b) and S (c) of the administra-
tion bill would allow the court to waive, when classified information is
involved, the "Rule of: Completeness," rule 106, and the. "Best. Evi-
dence Rule," rule 1005).
'Could' you describe the practical operation of these rules and com-
ment on the administration's proposal to change them?
r.-Mr. TIGAR. Yes. The first thing that this (toes, Mr. Chairman, is to
perpetuate the mystique of the classification stamp. One has a hard
enough time in a criminal. case when ordinary citizens see that classi-
fication stamp and don't realize everybody in Government who is airy-
. body has got.one. That is the first problem.
Let me turn to the second problem. I am not saying. that I don't trust
my Government, but the kinds of eases in which yot are likely to need,
these procedures are precisely the ones in which there is great ternpta
tion for the Government, counsel, as well as defense counsel, I suppose
to ot?erreacll because of the importance of the issues. Tlrat is why any
departure from a sort of common law adversary process bothers me.
The rule of completeness is a part of the d1, -e adversary process. It lets op-
posing counsel insist that a misleading impression not be created. Par-
ticularly S (b) seems to. involve. an. in camera determination so that
opposing counsel may not even see what has been deleted. You don't
eyen-have the in camera protection of the adversary process. .
With respect to the waiver of the best evidence rule, dlr. Chairman,
I assume you are familiar with that old saw which states there are no
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62
degrees of secondary evidence. This means that you could have a wit-
ness get tip and tell you what was in the document, or photograph, and
then you would try to cross-examine that witness about the contents
of this document or photograph and thereby try to establish what was
in it.
Imagine, Air. Chairman, if we were to take II.I:. 4745, and tear it up.
Throw it away. There are no originals, no xeroxes, and we were to get
Congressman Rodino in here, and you were to conduct his direct exam-
ination of what is in the bill and f was to cross-examine him. It would
be like three blind men trying to tell you what an elephant looks like.
I don't think any of its in this room would have a very good idea of'
what was in there by the time we were done.
That is the practical problem 'with that. And if you assume that the
Government witness on direct examination who is telling you what is
in the photograph or who is providing the information has a motive
to kind of twist the facts because he works for the Government, or to
color his testimony in a particular way, the problems are enhanced.
Mr. Munrii.r. Both bills authorize the court, once it has found
evidence containing classified information to be admissible, to require
deletions or summaries upon Government request if it finds that the de-
fendant's right to a fair trial will not be prejudiced. You indicated op-
position to these provisions in your statement. Doesn't the comment
"if a defendant's right to a fair trial will not be prejudiced" sufficiently
protect the defense interest?
Mr. TIOAr:. First, 'Mr. Chairman, I don"t believe so because I am
opposed in principle, to treating classified information differently from
all the other kinds of information that come into evidence in a trial,
such as priest-penitent privilege information, lawyer-client privilege
information, or trade secret information which may involve millions
and millions of dollars..If it is relevant and material to an element of
the offense or to a defense or for cross-examination purposes, then it
should be turned over. If it is not, it shouldn't. And the principles
shouldn't be any different for classified information. I see no prin-
cipled ground on which to do that.
Second, once again, you are asking the court ex parte and in camera
to summarize information which is going to be used by an advocate,
and over and over and over again I think we have found that trial
judges simply can't perform that function. Trial judges can't put
themselves in the shoes of the advocate in a way that is going to be fair
to a defendant.
This isn't simply my view. The Supreme. Court. said this in Dei v is v.
United States, at 384 U.S. 855 at pages 875 and 876. A number of trial
judges have said this with respect to reclliests that they review grand
jury testimony .and pick out what would be useful for cross-e_-qlmuia-
tion.
The collective experience of lawyers and trial judges and people
that work with this should warn its against any such thing.
At the very least, it seems that if you are going to have such a proce-
diire-and as I say, I am unalterably opposed to it-that you should
change the language as I have indicated to say that the motion shall
not be granted unless the court finds the defendant's right to a fair
trial will not be prejudiced thereby. That, coupled with the right to
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have it hearing, would mitigate the rigors of this section, and would
put the burden of proof where it belongs. That is, if you are going to
meddle with established rules, then the burden ought to be with the
people that want to meddle with it to establish their case.
? DIr. D'Itmrlm. Mr. DlcClory ?
Mr. DICCLOBr. I certainly can't accept your thesis that national
security, classified, secret information relating to the whole survival
of the Nation can he placed in the same category with privileged infor-
mation or ~rivilegecl statements such as communication between doc-
tor and patient, lawyer and client and so on as you just now indicated.
It seems to me that there is a very sharp distinction, and a much high-
er importance must be given to classified information which impinges
upon our national security.
Consequently, I think that to try to amend the rules of court or to
? embody in the rules that which has been held in court cases would be
entirely unsatisfactory as far as the objectives of the work of this com-
mittee and the objectives of the Justice Department, and for that mat-
ter, the objectives of defendants' interests, as expressed by DIr. I-Ial-
perin, of the ACLU, are concerned.
Mr. TIGAR. Congressman McClory, the committee can change the
rules of evidence and the rules of criminal procedure in any -way it
wants. The mechanism I propose for whatever change you do make
doesn't have anything to do with the contents of the rules.
Mr. MCCLORY. We don't change the rules. The rules of court are not
established by the committee and by the Congress. We sometimes give
legislative sanction to rules of court, but we now don't modify rules
of court by statutory enactment.
Mr. TIGAR. You have the present statutory power, I believe, to enact
amendments to the rules if you decide to clo so. The usual procedure is
that you simply approve or disapprove them, but I can think within
the last 2 years of several modifications that you have made to the
,rules of evidence and the rules of criminal procedure by legislative
action.
But I think it is true, and I say this with great respect, that we do
disagree, but not to the extent, perhaps, that your interpretation of my
remarks might have suggested.
Yes,.national security concerns are more important than lawyer-
client concerns. The Latin. maxim is sales reipublicae.suprema Zee,
which means the safety of the public is the supreme law. That admoni-
tion was quoted by Learned Hand, a staunch defender of the national
security. In 1950, he wrote that where the rights of a defendant are
concerned, this supreme principle must yield, and indeed, in the Coplon
.case he said that it is the test of whether a government is democratic
or not. If at the moment the government is going to prosecute one of
its citizens it is unwilling to take the wraps off whatever secrets may
be relevant to, the elements of the offense, or to a defense, or to a pro-
cedural protection such as the disclosure of wiretapping, or to cross-
examination, that the government is not democratic. I cite the Coplon
case in my testimony. I think I.cited it last time. It is a wise and pene-
trating discussion. It has been cited with approval by the Supreme
Court, and nobody has ever done better than that at setting out the
relevant considerations. .
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So in stmt, if we have on the one hand this important national
security interest, and if we have on the other hand these irrefragable
rights of a criminal defendant, the question isn't so much, "How are
,ve going to stack them up?" The question is: "Procedurally, how do
we reach an accommodation?"
I think 4736 tries to do that, and the reason I suggest that we treat
this accommodation in the same way that we treat lawyer-client privi-
lege questions is I want to give trial judges confidence and lawyers
.onfidence to work and make these procedures work. I want to suggest
:analogies to them, as well as not creating a sort of mystique of the
classification stamp.
Mr. 1MCCLORY. Well, I am encouraged by your support of H.R.
.l; 6, and I was merely questioning your oral statement that you ques-
t ion the need for either one of the bills, as I interpret it. I would merely
point out that there is a strong demand for some legislation. There is
a general recognition that some prosecutions have been aborted by a
defendant's claim that only by revealing classified information at a
public trial could he put forth a defense, and consequently the problem
the natio
presented legislatively to find a solution to protecting rrll
is
security interests and at the same time prosecuting wrongdoers, wlretlr-
cr they happen to have been former CIA agents or not.
Mr. TiGaR. To the extent that these bills attempt. to establish pro-
cedures to makesure that prosecution decisions are made on the merits
as opposed to for other reasons, they have merit. \Iy suggestion that
you integrate the procedures with the Federal rules is not designed
to deprecate the importance of the bills. It is designed to say that I
have confidence in the ability of trial judges and tlegal profession
and the Supreme Court, as well as this house, to work these procedures
out and to suggest needed changes. That really is the purpose of what
I was saying.
Mr. 11'ICCLORY. Do you feel that existing discovery procedures are
adequate to a plaintiff or defendant to determine the scope and extent
of classified information which might be required either in the prosecu-
tion or the defense?
Mr. TimAR. Absolutely not, Mr. DlcClory. I think that by and large
the courts have done fairly well in protecting the Government's in-
terests. Judges as a matter of course hold a pretrial conference and
issue all sorts of protective orders about how you can't use the. infor-
mation. One of the positive features of 4736 is that it imposes a dis-
covery ?
obligation on the Government in classified information cases.
That protects the rights of defendants to an extent that some trial
judges have simply been unwilling to do because they didn't think they
had the authority to do it. I welcome those provisions. ?
It.also insures that the classified information doesn't sit'back there
like a landmino'ready to blow up the prosecution michcay through
because some bureaucrat somewhche decided to protect the prosecuting
attorney.from knowing something that he should have Imow-n. By
putting that discovery obligation on the Government early, you are
going to make sure. that the prosecutor goes around to the agencies to
see what is there and that he doesn't get sandbagged by his onn pur-
ported friends.
Mr. IIcCLorv. I don't think you touched upon this, and maybe it is
not an area that you are particularly interested in, but what about the
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provision in H.R. 4736 for reporting nonprosecution of cases to the
committees of the House and Senate intelligence committees?
Mr. TIG.1R. I favor that provision, Congressman -NIcClory. It seems
to me that in this field perhaps more than any other. the need for some
control first by administrative regulation and second by the oversight
function of this House over the enormous discretion that the Justice
Department otherwise possesses is terribly important. Depending on
what administration it is, a refusal to prosecute may be protecting
some big multinational corporation against its misdeeds, may be pro-
tecting somebody that overthrew a foreign government, ancI may be
protecting a spy. It may be protecting a leaker that some department
head doesn't want to see brought to light. That is why I favor the
procedure that you have written in.
Mr?. MCCLORY. One more question, if I may, MIr. Chairman, and
that is when the defendant raises the issue that he has to use classified
information in order to properly present his defense, what do you
think about the right of the judge, in the in camera proceeding, not
only deciding whether or not that testimony or that evidence might
be relevant or relevant and material, but likewise, to determine whether
or not it was appropriately classified? Should the judge be authorized
to determine whether or not it has been properly classified?
In one bill, I think it is H.R. 4736, we provide that the Attorney
General will make that decision, and that's it. H.R. 4745, which you
have criticized, leaves that issue up to the judge to decide.
Mr. TIGAR. I think that is irrelevant, Mr. McClory, because as I
understand 4736, if the evidence is relevant and admissible it was
properly classified.
Mr. MCCLORY. In camera.
Mr. TIOAu. Well, if it is relevant, the defendant can use it. If it is not
relevant, lie can't use it. That is the determination the trial judge
makes. I don't think the trial judge needs to concern himself with the
question of whether or not it was properly classified in making that
ruling on evidence.
So I don't have any problem with the formulation in 4736. The
Attorney General's certification there is simply a stepping stone to get
the judge to make a pretrial relevancy determination.
DMr. McCI.oRY. Thank you.
Thank you, Mr. Chairman.
Mr. MURPHY. Thank you, Mr. McClory.
Mr. Tigar, one question. What about applying the statute to of-
fenses that may have occurred in the recent past where the Justice
Department is considering bringing action and we pass the statute.
When do you think the applicability of the statute should apply?
Dir. TIGAR. I think the statute should apply to all pending cases and
all alleged offenses whenever committed if the prosecutions are here-
after brought. There is a presumption that procedural legislation
applies retroactively and that substantive legislation applies prospec-
tively. That is a canon of statutory construction, and the fate of adjust-
ments of the statute of limitations, for example, in the criminal code,
so as to apply to offenses to which the statute has not yet run indicates
that retroactive application wouldn't face any constitutional hurdles
in the court. .
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I must say that if a bill were passed with which I agreed and I were
Amin( to represent somebody, I would ask that these procedures be
plied, nt least the part of them that makes the Government have to
tell no things.
Mr.MCCLORY. May I ask a question?
Mr..MuarnY. Sure.
Mr. MCCLORY. Do you feel that either one of these bills or both
of these bills are more beneficial to the prosecution or the defendants?
Mr. TIGER. 4745 is probably a more pro-prosecution bill. It is con-
ceived as such. However, I would venture to say that the cumbersome-
ness of the procedures that it establishes, and the multipart analysis
that somebody inside the Justice Department has come with pose
erious problems for both the prosecution and the defense. The more
1?o111lex you make things in an effort to cover all possible contin-
gencies, the more things slip through the cracks. I think 4736 is sort
of a lawyer's bill.
Mr. McCLORY. If we would choose to make the statute applicable
only prospectively, you don't question we could do that?
Mr. TIGAR. I have no question that you could do that as well. Of
course, a trial judge already, under Federal Rule of Criminal Pro-
cedure 17.1, could take a look at this bill and say, well,.it doesn't really
apply, but I am going to issue a )retrial order that has got everything
in 4736 in it, except, of course, the Government's right of appeal, and
impose those procedures.
I suspect, as a matter of fact, that you would find a lot of trial judges
doing that simply because they don't want to niatke a misstep in han-
dling cases that are as important as these kinds of cases.
Mr. MCCLORY. With respect to the interlocutory appeal, you only
oppose the interlocutory appeal authority with respect to decisions
that are made during trial. Pretrial you have no problem there?
Mr. TIGAR. I have no problem with that provided it is made a part
of 3-134 which requires that the defendant be released. I think you have
serious speedy trial act problems having an incarcerated defendant
sitting around cooling his or her heels while the Government winds
its way up to the Court of Appeals.
Mr. McCLoRY. Thank you, Mr. Chairman.
Mr. MURrHY. Mr. O'Neil.
Mr. O'NEIL. Mr. Tigar, H.R. 4745 proposes a standard of relevance
to which you have earlier referred, at section 6(c) (2).
Mr. TIGar,. Yes, sir.
Mr. O'NEIL. And the Government has described that section as ap-
plying the standard explicated in the Roviaro case. They have also said
that even if 4736 were to become law, they would argue that, a Roviaro-
type standard ought to be.applied in these kinds of situations, that is
to say, that the Government ought to have at least as much protection
for classified information as the courts have given a Government
informant.
%\Tould you comment on that? I mean, their contention is that this
standard would arguably apply even today.
Mr. TIGAR.. I see. That is crackpot. With all clue respect to the.
Department of Justice. that really is lunacy. The Roriaro case deals
with the question of when the Government must reveal the name of
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an informant who is not a witness at the trial, and the Court held that,
in a decision that has spawned as much appellate litigation as any de-
cision of the Supreme Court that I ]mow about, the disclosure must
be made at least if the informer was a witness to the offense itself.
Roviaro has nothing to do with the admissibility in evidence of a
particular document or other item of evidence, or the testimony of a
witness at trial. At trial, if a witness is proffered by the Government,
that witness may be cross-examined not only as to an element of the
offense or a legally cognizable defense. That witness may be cross-
examined as to motive to falsify, bias, prejudice, prior inconsistent
statements, a,ny deal that the witness has made with the Government
and so on. Those standards are explicated in cases that are relevant
to that question, of which Roviaro doesn't really happen to be one,
such as United States v. Giglio, Davis v. Alaska, and Brady v.11lal,-
land. Those cases, decided by the current Supreme Court, have to tlo
with the standard of what is admissible in evidence.
So to the extent that Roviaro is being relied upon as a blanket
standard for introduction of evidence, that is simply Wrong.
You could have a Roviaro standard with respect to the disclosure
of an informant whose identity or activities may be classified, but that
doesn't have anything to do with disclosing or eliciting at a trial
proceeding.
Mr. O'\TErL. And one other thing. The two bills also differ, and
Mr. McClory has alluded to this several tines, at the point at which
the trial court sees either, in the case of 4736, an affidavit. or certifica-
tion front the Attorney General as to the classification of material or in
the case of 4745, an explanation, a written explanation of what is
classified and why it is sensitive. They differ in when the trial court
sees this. In 4736 it is provided after the judge makes any determina-
tion of relevance, use or admissibility. In 4745 it is provided con-
temporaneous with any request the Government has for deliberation
by the judge on those issues of admissibility, relevance, et cetera.
What is your opinion concerning the two approaches?
Mr. TIG_1R. In every case involving the potential use of classified
information, a pretrial conference is a good idea and there is no con-
stitutional problem with having it in camera. A judge doesn't need an
affidavit early on about why the material is classified or what impor-
tance it has. The fact is that the information is classified anti somebody
cares about setting these questions and so a conference should be held.
In 4736, the affidavit. applies only in a specific, limitecl situation
where the judge. has ruled on admissibility and where the Govern-
ment wants to substitute a summary or a stipulation. I am opposed
to any such substitution procedure, but at least if you are going to
have one, the inclusion in 4736 of the affidavit provision makes the
providing of that affidavit a kind of hurdle that the Government has
to jump over, and to that extent fulfills some function that is relevant
to the trial process.
I don't really see why there is an affidavit procedure in 4745. It seems
to me that somebody began to write a bill about why things are classi-
fied, and then someplace in the halls of the Justice Department it
collided with a bill about pretrial procedures, and this is what hap-
pened.
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68
.sir. O'Nru,. Well, the Government contends that it would be help-
ful to them and to the courts, more often to the court, if the court
were fully apprised of all the circumstances of the matter at issue
when it goes to determine such matters as whether or not a substitution.
is appropriate, or a stipulation. If it realizes that the only thin- at
i-sue is whether or not, say, the name of an agent, of an intelligence-
; gent will be included in what is provided to defendant, then the
court can very easily make that kind of determination, and therefore
all these matters ought to all be thrown together. * hereas the ap-
ln?oach of 4736 is that the judge doesn't see any certification until he
actually determines beforehand whether it is relevant or admissible.
Mr. frIcAn. Sure. Well, the only purpose of the affidavit in 4745 is
to scare the hell out of the district judge and to snake him or her think
that the information is so important that if she or he makes a misstep
on the defendant's side as opposed to the prosecution's side irreparable
damage will be caused to the country.
I don't mean to be uncharitable in ascribing motives to the authors
of the bill, but I really don't see any other purpose for putting the
affidavit provision in section 6 (b) of 4745.
1Ir. Mummy. Ira?
Mr. GOLDMAN. I wanted to clarify one thing in talking about the
Roviaro standard "relevant and helpful," or relevant and material."
At one point a little earlier you made a flat statement that if professed
evidence is "relevant material," it must be released to the defendant.
If it is not, it doesn't have to be.
Now, did you mean "relevant and material" or did you mean just
"relevant" ?
Mr. TIOAR. No ? I meant "relevant and material" because I don't. have
any problem with .the use of both of those standards as I believe them
to be defined by the text.-writers. Professor Morgan at Harvard used
to say that material meant having some relationship to the case, and
relevant meant tending to prove a particular proposition in the case. I
don't really understand that distinction, but you can use both words if
you want. It doesn't bother me.
The language I have trouble with is what followed : "Relevant and
material to an element of the offense or a legally cognizable defense."
Information can be relevant and material and therefore admissible
under the Federal Rules of Evidence which says that, prima facie, all
relevant evidence is admissible, without being relevant to an element
,of, the offense or to a legally cognizable defense. It can be relevant to
the state of mind of the witness: It. could-be relevant to the witness's
bias, relevant to prejudice, relevant to some deal he or she made with
the Government, and so on. These are examples of considerations I
mentioned before..
Mr. GOLDMAN. You obviously are aware of the background of the
rape evidence rule and as to why there was a call for setting up such
a rule. . ' .
Do you feel that that'is intended to protect the victim, or is it prej-
udice to the fact-finding function of the trial?
Mr. TIOAIZ. Prejudice means prejudice to either side of the lawsuit
not to the witness. There is no privilege against being asked embarrass-
ing qquestions. Professor Greenleaf so suggested in a treatise in 1870,
but the suggestion. died without anybody ever seconding it.
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Tho prejudice hero is-prejudice to the prosecution, that is, asking the
prosecutrix about prior unchastity simply inflames the jury against
her, and therefore against the prosecution and that prejudicial effect
outweighs any relevance that the evidence is thought to have.
Mr. GOLDIIA\. Trying to keep the rules as much as they are now,
rather than changing them unless there is a good case for it, and look-
in- at the requirement in 4736 that a bill of particulars he supplied to
a defendant automatically, unrequested, do you feel that, that require-
ment is necessary; that if a case involved classified information, it nec-
essarily calls on the Government to provide a bill of particulars?
llr. TIGAR. Yes, I do, for two reasons. First, because it is a quid pro
quo. You are requiring the defendant to come forward and give notice
of an intention to use classified information, similar to the alibi de-
fense rule applied against defendants. In the alibi defense notice
statute, Rule 12.2 of the Federal Rules of Criminal Procedure, there
is a quid pro quo. The Government has to come back and say what
they are going to use to rebut it.
Mr. GOLn3 A . WTell, this bill would require that also, so a bill. of
particulars in addition to the information that is going to be used
to rebut the testimony is necessary ?
Mr. Ti(;.-,P.. That's right.
Mr. GOLm11\-. I mean, it apparently goes farther than the alibi
notice rule.
.Mr. TIGan. Let me go on because, of course, the alibi notice rule bill
of particulars doesn't' really matter provided they provide the in-
formation.
The bill of particulars serves a second function, which is to help
both sides anticipate the need for rulings on classified information.
The bill of particulars circumscribes the Government's proof. It makes
sure that the prosecution can't, spring unexpectedly. To the extent it
provides a road map, it is helpful.
I would have thought that the language was unnecessary when in
1966 Federal Rule of Criminal Procedure 7(f) was amended to
change the word "may". to the word "sliall" with respect to the pro-
vision of bills of particulars generally. Unfortunately that change
seems to have escaped the notice of a great many sitting district judges.
So I think it is a good idea to remind them of it.
Mr. GOLDMANN. Do you feel that a court can issue a protective order
that prevents an attorney from discussing with his client certain mat-
ters disclosed to him? .
Mr. Trani. Absolutely not.
Mr. G0rn1raX. Even if-the information doesn't relate to a defense
? to the charges but rather just to impeachment? Here I am thinking
of an alternative to the Justice Department's proposal in the Jencks
Act. I understand where through discovery the defense counsel ob-
tains information that it might be necessary to discuss it with a client
in order to prepare the defense as to what actually took place. but if
it is just for impeachment, is it necessary to have the client take part
in discussing that sensitive material ?
Mr. TwGin. Of course it is, and I think that the effective assistance
cinla was recognized as far back as the Scottsboro case, Powe77 V.
A7n7)mnux. where counsel were not given sufficient access to the de-
fendants to be able to prepare. That is the constitutional side.
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The practical side is this: I cant try a case in which somebody's lib-
erty is at stake in which I am called upon to cross-examine a witness
wit!j whom the defendant has been intimately involved; I don't mean
in a carnal way, I just mean that they know each other real well, ands
there is a dispute about what was done and what was said, and I can't
cross-examine that witness without the active help of the defendant at
every stage. Unfortunately what you are going to have in a number of
these national security cases, because of their nature, is a lot of one-on-
oue cases, where it is the defendant's version against somebody else's
version as to just how things got to where they were.
Mr. GOLD-MAN. One final question. The Governiilent has one problem
in espionage cases apparently where one document of, let's say 200
pages, is transmitted to a foreign power, and the Government would
like to only put before the jury a portion of that document. Now, one
possibility is to only charge the defendant with transmittal of 10 pages
of the document. You criticized the Justice Department proposal which
would allow only admission into evidence of part of the given clocu-
mcat. Do you think that ehrrging the defendant only with trans-
mittal of part would be a solution, or do you think under the exiting
rules of relevance and completeness that the Government would be
able to only have admitted part of a classified document for admission
to the jury?
Mr. TicAr. I would welcome any procedure that would identify the
specific information that the Government thought harmed the national
security. I welcome specificity. I am opposed.to interfering with the
rule of completeness which essentially says to the trial judge, "Look,
if it is fair to let the whole thing in, then let the, whole thing in." I
don't see why you ought to interfere with the discretion of trial judges
in that regard.
I could easily see a case in which the Government would charge a per-
son with having transmitted only 10 pages when in fact the whole doc-
ument was transmitted, in which the introduction of the rest of the
document could materially weaken the Government's contention that
the national security had been harmed. It is possible to take some.
language out of context in such a way as to enhance the seeming impact
of it on the national security. That again is something that has got to
be dealt with on a case-by-case basis. It doesn't seem to me that you
can ask yourself a lot of "what ifs"' and cabin the trial judge's
discretion. ?
Mr. GoLDMAx. Thank, you.
Mr. Musrrr.. Air. Raimo. . .
Mr. RAI3to. Thank you, Mr. Chairman.
Mr. Tigar, in your statement you noted that you favor integrating
the provisions of this bill into the Federal rules. Other people have
suggested that we postpone the whole legislative process and allow
these, in effect, changes in the Federal rules to be made ln1rsuant to the
normal procedure in which Federal rules are enacted.
What is your opinion on that?
Mr. TICAR. I wouldn't be opposed to doing that, but I unclerstancl
there's a lot of pressure to get a bill, and that pressure is being heard
from everywhere. I think therefore that any such suggestion is fruit-
less. But f don't think you really have to wait for the advisory commit-
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tee process. This committee has held hearings and it has heard from
and actively sought out people of all different persuasions and all
different views. That work is reflected in the various drafts that have
been circulated at various times, so that a deliberative -process has
gone on.
I think you accomplish enough if you integrate them into the rules
and then provide automatically thereby that as problems crop up, as
unanticipated difficulties with this or that provision are demonstrated _
to exist, the advising and consulting and amending process could take
care of it. I think you accomplish enough if you did that.
1fr. RAIMO. Thank you.
Thank you, Mr. Chairman.
DIr. DIIIRPIIT. Mr. Tigar, thank you again for your cooperation with
this committee as you have done in the past, and I hope in the future.
Mr. TIGAr,. Thank you very much, Mr. Chairman, Congressman
11feClory. Thank you.
Mr. Mu riiY. Our next witness this afternoon is DIr. _Michael Schein-
inger. Mr. Scheininger appeared for the defense in both the Benrellez
and Garrity cases, two prosecutions that helped draw attention to the
issue of graymail.
He is accompanied in his testimony by DIr. Thomas Guidoboni.
DIr. Scheininger, thank you very much for appearing today, and
gentlemen welcome.
You may proceed.
STATEMENT OF MICHAEL G. SCHEININGER, ESQ., FORMER ASSIS-
TANT U.S. ATTORNEY AND PARTNER,. BONNER, THOMPSON,
O'CONNELL & GAYNES, ACCOMPANIED BY THOMAS A. GUIDOBONI,
ESQ., FORMERLY OF THE DISTRICT OF COLUMBIA PUBLIC DE-
FENDER SERVICE AND ASSOCIATE, BONNER, THOMPSON, O'CON-
NELL & GAYNES
Mr. SciIEINIxGER. Thank you, Mr. Chairman, Mr. McCl_ory.
Mr. Chairman, we have prepared a statement which we would like to
submit for the record and particularly in view of ."jr. Tigar's testi-
mony, I will only summarize and perhaps read select portions of my
prepared statement.
Mr. MIIrrin. Without objection.
Mr. ScnEI\I\GER. Thank you, sir.
..[The prepared statement of Mr. Scheininger follows:]
STATEMENT OF '.NIICIIAEL G. SCIIEININOER, FORMER ASSISTANT U.S. ATTORNEY,
PARTNER, BONNER, Tiroirsox, O'CONNELL & GAYNES
Mr. Chairman, I am honored and privileged to appear today, at the Sub-
committee's invitation, to present my views on various hills that have been
introduced to deal with the use of national security information in criminal
trials. Mr. Guidoboni and I speak on our own behalf as members of the bar who
have participated in the defense of criminal cases involving national security.
We know that the various bills now pending in both Houses of Congress are
the result of diligent and fairminded efforts to deal with the complex problems
of criminal justice and national secuuity. But, we believe that these bills over-
react to the actual problems in this area, and that the Adminisration Dill, in
particular, unjustifiably interferes with the rights of a criminal defendant.
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Mr. TIGAR. On the whole, I think this bill is deserving of the com-
mittee's favorable attention.
However, I would like to raise for the committee's consideration
the possibility that you may not need a bill at all, at least not one in
this form.
Mr. Chairman, you may recall that in 1973 this committee had
before it the proposed Federal Rules of Evidence and at that time
the 500 series of rules, including rule 509, which dealt with official
information and state secrets. Proposed rule 509 came to the committee
surrounded and almost discredited by a last-minute intervention
of the Justice Department in the rule-drafting process, and by the
Nixon administration's unwarranted claim of the national security
executive privilege.
So the committee, for that and other reasons, among which was
the fact that the Supreme Court had split 4 to 4 on the crucial lawyer-
client privilege issue in Harper of Row v. Decker, backed away from
codifying the law of privilege.
The present bill, H.R. 4736, is essentially an evidentiary privilege
bill. It seems to me, the committee may want to consider, even if
this bill is passed as an interim measure, having another look at the
whole question of evidentiary privilege.
Because, Mr. Chairman, there really is no difference between a
state secret privilege and a lawyer-client or priest-penitent privilege;
that is to say, it isn't simply a question of whether the jury hears it
or not; there's information that the law says somebody is entitled
to keep private. Therefore, I suggest that a separate bill may not be
necessary.
Also, I am concerned about this mystique of secrecy, the idea
that we have to legislate about something "special" called "state
secrets." The mystique of secrecy is always a part of the Government's
tactical approach to a case in which national security is involved.
They think if they scare hell out of the district judge by informing
him or her that this is a case that involves secrets, why, the Govern-
ment's going to get more material protected than it otherwise might.
If there is to be a bill, however, Mr. Chairman-I have looked this
one over, and I have looked over some of the other proposed alter-
natives that have been put in, both in this House and over in the
Senate, and this is the best of the bunch.
I would suggest, however, that the following matters warrant your
very careful attention:
First: The section 103 provision for a Government-drafted summary
in place of relevant and admissible classified information not only
vests, as I said in my prepared statement, tremendous and largely
unreviewable discretion, in the district judge, but that substitution of
a summary for classified information simply enhances this mystique
of secrecy. This is particularly so in espionage cases where the
defendant already labors under enough disability just because of the
nature of the charge.
I suggest respectfully to the committee that it really works a hard-
ship on the defense, and that if evidence is relevant and admissible,
the jury ought to hear it just as it hears any other relevant and admis-
sible evidence, and evaluate it in its totality.
Second: I refer to the provision in section 108 for an appeal.
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73
Under this bill, Mr. Chairman, the Government gets to take an
interlocutory appeal from an adverse decision by the district judge.
Now, any time you give the Government an appeal in a criminal case,
you implicate the following rights:
First: The defendant's right to a speedy trial. Although there's a
provision for the appeal being decided swiftly, Mr. Chairman, in the
Organized Crimes bill you put a 30-day limit on deciding contempt
proceedings relating to grand jury refusals to testify, in section 1826,
I believe it was, of title 28, and the courts of appeals simply ignored it,
and they are ignoring it to this good day.
The second thing that you may implicate, Mr. Chairman, is the
defendant's right to be free.
When this Congress amended the Criminal Appeals Act in 1979, 18
United States Code, section 3731, they said to the Nixon Justice
Department, all right, we'll give you the right to appeal from the
granting of motion to suppress pretrial, but you are going to have to
let the defendant loose while you're up there in the court of appeals.
This bill contains no similar provision.
There isn't any special risk in letting defendants in these sensitive
cases go, as Mr. Justice Brennan held in his opinion releasing David
Truong pending his appeal. It seems to me that if the Government
knows the defendant is going to be on the street, bailed, if it takes its
wan going to be a protection against the Government idly
appeal, that's
wandering up to the court of appeals just because they don't like what
the district judge said.
Third: Mr. Chairman, and perhaps most important, section 110 of
the bill says that the rules to be drafted for preserving and protecting
classified information in the Federal courts are to be drafted by the
Chief Justice of the United States in consultation with the Attorney
General and the CIA Director.
Well, the Attorney General and the CIA Director have fairly pre-
dictable views on these matters: They are in favor of secrecy. I've
never met one who wasn't.
The Chief Justice of the United States on a particular occasion may
or may not be in favor of secrecy, but, Mr. Chairman, the rulemaking
function vested in the Supreme Court ever since the Federal Rules
Enabling Act in the 1930's and on down through the Rules Enabling
Act amendments in the 1940's for the criminal rules, and in the 1960's
for the rules of evidence have always worked this way.
The whole Supreme Court makes the rules, and they do so after
they hear from an advisory committee which consists of a broad rep-
resentation of members of the bar. On your evidence committee you
had Judge Weinstein, you had Mr. Erdahl from the Justice Depart-
ment, you had my former law partner, Ed Williams; and I think with
that kind of solicitation of views, you get a much more balanced
presentation, not to mention the greater balance that you get when
the Court as a whole, as opposed to whoever happens to be Chief
Justice, does the job.
Those are my specific criticisms, Mr. Chairman. I would be willing
to answer any questions.
Mr. EDWARDS. Mr. Tigar, those are important criticisms.
I am curious as to what Mr. Halperin or Mr. Adler might say about
section 110, is it, regarding the rules, the making of the rules by the
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74
Chief Justice and the CIA and Attorney General. What is your
observation?
Mr. HALPERIN. Well, I think it might well be useful to have the
full Court involved, but I must say, as I understand this procedure,
it is limited to the question of the storage of the information, and it
does not go to what the bill goes to, which are the procedures for
determining under what circumstances the information has to be made
public at the trial.
That is, it is simply a set of housekeeping rules about safes and
storage of information.
While the Congress is often accused of not protecting classified
information, in fact the courts sometimes simply lose things. Classi-
fied briefs submitted in the Pentagon Papers case and other cases have
disappeared, literally.
I Interpret this very narrowly as relating specifically to safes and
locks and procedures for the Court itself and not to any of the sub-
stantive matters such as when information has to be made public.
On the other hand, there certainly would be no objection, and it
might be useful to keep the pattern and tradition, to substitute for
the Chief Justice the Supreme Court of the United States.
Mr. EDWARDS. It is giving this particular type of classified informa-
tion a mystique by having a different rulemaking body, is that your
point of view, Mr. Tigar?
Mr. TI(iAR. Yes, Mr. Chairman.
An example of what could be called a simple housekeeping rule is
what the Government has attempted to impose on me in cases.
They said, all right, you can have the classified information, but it's
going to be kept in a safe in the U.S. attorney's office, and any time
you want to use it, even though the court's ruled that you're entitled
to it to prepare for the defense, you can come during office hours and
the FBI will open the safe and you can sit there and look at this
evidence.
And I said, well, you know, I have a safe in my office, and if I
signed a piece of paper that said I'll protect these things, I think I am
as reliable as most of the FBI agents I know-and may%e more reliable
than some.
That seems to hamper the preparation of the defense. That's an
example of the kind of drafting problem that input from the defense
bar and from a broader spectrum could deal with in the drafting of
these rules which, in any case, are going to have to be approved or
disapproved by the Congress.
Mr. HALPERIN. I want to point out that I think if it covered that,
it would be a very serious problem.
The report of the House committee makes it very clear that the
intention is not to cover that. It says specifically, issues of particular
effect on the trial process and the rights of defendants, such as defense
access to classified material, are to remain within the province of the
individual trial judge and the judge's authority to issue protective
orders.
The earlier section says it is meant to deal only with the question
of how the court itself stores the documents that it has in its posses-
sion, what personnel will have access, and the security clearances for
court personnel, and so on.
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So while I say I think, in the interests of not having a special rule,
it might be sensible to change that, I think it is certainly important
for this committee to emphasize-whether or not it proposed an
amendment-that this section relates only to how the court stores its
own information and cannot affect questions precisely of the kind
that Mr. Tigar is pointing to.
Mr. EDWARDS. In other words, Mr. Halperin, you are saying this
provision is intended to be interpreted much more narrowly than Mr.
Tigar indicates it might be?
Mr. HALPERIN. Yes, but I think it would be useful to this commit-
tee to make it clear that if it does accept it, it does so based exclusively
on this interpretation, and maybe to write in some legislative history
that makes it even clearer that what it is talking about here is the
question of what kind of safes the Court has to keep the information in,
in the courthouse; not talking about precisely the kind of questions Mr.
? Tigar mentioned, which are a major issue in trials, and which I think
do have to-as this bill does-leave them to the discretion of the trial
judge.
Mr. EDWARDS. Do you think the legislative history would be enough
to offer that type of protection?
Mr. TIGAR. I think that strong legislative history limiting it is more
important than whether you make it the court as a whole, because
even if it was the court as a whole, I must say with all deference to the
Supreme Court, I would not want the Supreme Court and the Director
of the CIA and the Attorney General as a group to issue rules which
affect defendants' right of access to that information in a trial.
Mr. Chairman, if the legislative history makes. it clear that this is
simply a question of what kind of a safe the thing has to be kept in and
what court personnel can have access to the classified information,
much of the force of my objection is blunted.
I am not as sanguine as my Brother Halperin about the beneficial
impact of legislative history, but that would certainly go a long way
toward solving this problem.
Mr. HALPERIN. Let me just say a word about legislative history,
if I can.
I think there's some difference between this area and others in that
the bar that deals with these questions is very small. Any benefit that
we get out of legislative history will, I can assure you, be called to the
? attention of any defense attorney that's dealing with a case like this.
I think, on the other side, one has to remember the trial judges now
fashion their own rules, and often fashion the rules which I think are
clearly unconstitutional-which, I think this bill would make it clear,
is not permissible.
Mr. EDWARDS. In regard to section 103, government-drafted sum-
maries, the subcommittee has had experience with some of these. I
might observe that we don't like them very much.
In all of the domestic security and FBI hearings we have had, and
during the audit by GAO of domestic security activities of the FBI,
there's always been an FBI agent standing between the auditor and
the file. This has caused. considerable problem, as you might guess. The
auditor or the GAO might very well be privy to the most sensitive of
classified information with regard to nuclear weapons delivery systems
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in auditing other agencies, and still did not access any FBI file, even
an applicant file. There is always a summary provided to him or her.
I would like to hear Mr. Halperin or Mr. Adler on this subject as to
how serious you think the matter is.
Mr. HALPERIN. Mr. Chairman, I would refer you to the House com-
mittee report, which I think makes two important points. One is that
this procedure does not come into play until the defendants has the
information; so you are not talking about a situation in which the
Government does a summary, the trial judge looks at it and decides,
ex parte, that it's a fair and adequate summary of the information.
This procedure only comes into play after the court has made a
determination under the procedures established under section 102,
which call for a full, adversary proceeding.
Mr. EDWARDS. You are saying the court is privy to the information?
The judge is not limited in some cases to a summary?
Mr. HALPERIN. Not only the court, but defense counsel, because
section 103 says, upon a determination by the court authorizing dis-
closure of specific classified information under the procedures estab-
lished by section 102-the procedures established by section 102
require a full, adversary proceeding, in camera, under a protective
order so that the defense counsel and defendant can't disclose the
information.
But the defendant, as I understand the bill, and his counsel get
access to the information. There is an argunent, an adversary argu-
ment, about whether the information is relevant or not. The judge
rules that the information is relevant. The Government can then come
forward and say either, we are prepared to stipulate the point the
defendant is trying to prove with that information-if the point is the
President of the United States authorized a burglary on national
security grounds, the Government may move to stipulate the facts.
Or they may say, we can substitute some information which provides
the same degree of proof to the jury.
Now, I think the issue arises in which there is a different judgment
about whether or not it is substantially the same. Here again, the
report emphasizes not only the full, adversary hearing and, therefore,
the defendant's ability to argue both at the district court level and at
the court of appeals that this was not an adequate summary, but it
makes it clear that the intent is the court may order this procedure
only if it is equivalent disclosure for purposes of a fair trial.
1 think, again, language by this committee in its report, emphasizing
that this procedure only can be used if the judge is absolutely certain
that he is not depriving the defendant of any advantage or any utility
of the original information before the jury, including what use an
experienced advocate can make of it, would, again, go far toward
blunting this situation.
My understanding is also, Mr. Chairman, that district court
judges have this right now, under, I think it's rule 16(d) of the Rules
of Procedure, to make the same kind of substitution.
Mr. EDWARDS. Mr. Tigar?
Mr. TIGAR. Mr. Chairman, section 102 of the bill has three sub-
sections: 102(c) provides for a Government-triggered, in camera
adversary proceeding; 102 (a) and (b) appear to contemplate a situa-
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tion in which the defendant has some classified information which he or
she wants to disclose.
So, for 102 (a) and (b), Mr. Halperin is right. Section 102(c) refers
to a situation in which the Government anticipates that classified
information may become an issue in the case. It then moves.
Page 16 of the Permanent Select Committee on Intelligence Report
of March 19, 1980, makes clear that this Government-triggered
proceeding is designed for situations in which the defendant does not
already have the classsified information. in his or her possession.
Thus, in a 102 (c) situation, the 103 hearing would, as I . read the
bill and the legislative history, permit the district judge to authorize
a substitution of a summary for classified information that the de-
fendant and his or her counsel has never seen.
We are not talking here, Mr. Chairman, about the discovery
process, Federal Rule of Criminal Procedure 16; we are talking about
trial evidence, not just something to help you prepare for your case;
so that what you have is the district judge and the Government
getting together and agreeing that a summary is adequate. And they
do it ex parte.
In Dennis v. United States, Mr. Chairman, 384 U.S. 855, the Su-
preme Court said with respect to the district judge's review of a grand
jury testimony transcript, "In our system it is enough for judges to
u
The Court went on to say that determinations of what may be
useful to the defense can effectively and properly be made only by
an advocate.
It's only the advocate, looking over the actual classified stuff, who
can pick out the parts of it that are going to get lined up on the jury
rail at summation time, when you try to put them all together and
establish that there's a reasonable doubt-which is, after all, what the
process is supposed to be about.
That, Mr. Chairman, is my objection to section 103.
Mr. EDWARDS. Mr. Halperin?
Mr. HALPERIN. If it is correct that it contemplates that kind of
ex parte procedure, I think it would be totally unacceptable.
I do not read the bill as permitting even under those circumstances-
my understanding is that even where the Government is in possession
of the information and under the Government-triggered procedures,
nevertheless, the defendant is informed of what the information is.
The same adversary proceeding must take place, whether or not the
information was in possession of the Government or in the possession
of the defendant.
If there's any question about that, then I think I'd like to look over
the bill and the report, and perhaps submit something for the record
on it. I think if there was any question about that, either an amend-
ment or some legislative history would be necessary to make it ab-
solutely clear that under no circumstances can that decision be made
except after an adversary hearing..
Mrr. EDWARDS. I appreciate that testimony.
Counsel?
Ms. LERoY. Mr. Tigar, you are currently involved in a case that
in the future would be covered by this bill. Can you tell us how this
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bill would have affected the handling of that case up to this point,
or whether it would have affected it?
Mr. TIGAR. You are referring to United States v. Truong and
Humphrey?
Ms. LERoY. Yes.
Mr. TIGAR. Counsel, I believe that this bill would have codified,
essentially, the procedures which we eventually wound up agreeing
on with the Government, under some prodding by the district judos.
.So what took 10 days, out of the 30 that we had to prepare for
trial, would have taken 1 day. That's the only difference with respect
to how things finally came out.
In other cases, there would have been great differences. For example,
in the Kearny case, where the Government prosecuted the FBI
agent in New York, the Justice Department took the view that
defense counsel had to go get security clearances before they could
even start the discovery process, which seemed silly, but at any rate ?
put an intolerable delay in there and also began to serve to enhance
the mystique of secrecy.
After all, if the able, experienced prosecutor is going to let the jury
know that all the lawyers had to have security clearances in order to
see this stuff, that simply enhances that mystiqe.
I don't mean to ramble on. It seems to me the fact that we negotiated
something that looks like a lot of this bill in the course of lawyers butt-
ing heads in the Truong case is a tribute to the amount of work that's
been done and careful attention that's been paid in drafting some of
these provisions.
Ms. LERoY. Well, have there been any cases in the last year or two
you are aware of where the results would have been different, or the
procedures would have been different, if this bill had been passed?
Mr. 'rIGAR. Yes; I had forgotten one example in the Truong case:
this bill imposes upon the government a duty to come forward with
all the classified information that's relevant and material, not only to
the elements of the offense, but to cross-examination as well, and lay
it all on the table and have the hearing. And if they don't, they are in
trouble; and the bill makes that clear.
In Truong, when we got to the court of appeals, we learned that a
piece of evidence in the possession of the CIA, a secret report, which
contradicted the testimony of the Government's principal witness on
the crucial issue of the espionage charge, had been withheld from the
U.S. attorney by the CIA, and, thus, withheld by the U.S. attorney
from the court.
Now, this bill would leave the Government with no excuse what-
ever for that sort of behavior. The excuse under the circumstances
was that, well, gee, the CIA has their own problems and can't always
be expected to understand what their duties are in the trial process.
This bill makes clear that the CIA is a part of the U.S. Government,
to the extent that it wants to invoke the criminal process to protect
its interests; and I am for legislation that makes them part of the
U.S. Government, because I am not sure they always understand
that.
Ms. LERoY. So you would say this bill would help the defense as
much as the prosecution in these cases?
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Mr. TIGAR. With the exceptions I have noted, it is. I think there is
disproportionality in the three parts of the bill that I mentioned,
treating appeals in these sorts of cases differently, the rulemaking
provisions, and the summary procedure.
Mr. EDWARDS. Do you think the CIA has an affirmative duty-a
reversible duty, shall we say-to give that information to the court?
Suppose the CIA is involved in a sort of subsidiary way to the case,
involved as a part of the Government and not a major factor in the
case; and CIA has this information, and it knows it has this informa-
tion that is relevant to the defense and trial, perhaps information
about an informant, or something like that.
4d Do you think that there is presently an affirmative obligation on
the CIA to tell the defense attorney?
Mr. TIGAR. Yes; Mr. Chairman, the obligation is principally in the
U.S. attorney prosecuting, who has the duty to go seek out all poten-
tially exculpatory evidence. The Supreme Court has imposed that
burden on the attorney for the Government, representing the
Government.
The Supreme Court of the United States has never passed on that
question directly in the context in which you raise it, although, in
Santobello v. New York they held that a plea-bargain promise made by
one prosecutor was binding on another prosecutor.
The D.C. Circuit has addressed the question directly, not in the
context of the CIA, but in the BNDD, the predecessor to the present
DEA, in United States v. Bryant, decided in 1971 in an opinion by
Judge J. Skelly Wright. And there the court held that the fact that a
tape recording which contradicted the testimony of a Government
witness, although it was in the possession of another agency, none-
theless there was a burden on the Government to produce it.
Now, the Supreme Court has held in United States v. Agurs, that
there's some duty on the defense to come forward and tell the pros-
ecutor what kinds of exculpatory material may be out there; but
once you've met the Agurs burden, the answer to your question is
unequivocally "yes."
Ms. LEROY. In testimony before this subcommittee the CIA
suggested that a provision be added to the bill to permit the Govern-
ment to prove the contents of a classified document without actually
introducing the document or duplicate, into evidence. I think that
provision is section 8(1) of the administration's bill.
The CIA indicated the provision might be useful in cases involving
an unsuccessful attempt to deliver classified documents to an agent
of a foreign government. The CIA's concern centered on the possibility
of disclosing at trial the same evidence they succeeded in not having
transmitted to the foreign government.
I wonder if all of you would comment on that provision?
Mr. HALPERIN. I think the remedy to that problem, which I
think is a real one, is to change the espionage laws, and not to change
the procedures for handling classified information at trial.
I think what the CIA proposes is unconstitutional. I think the
Supreme Court made that clear in Gorin when it said that the question
of whether the information relates to the national defense is a factual
question for the jury; if it's a factual question for the jury, the jury
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has to be given the evidence on which to make that factual
determination.
I think Congress could draft a statute that made it a crime to do
what is described in these scenarios, which would not depend on the
quality of the information that was passed. I think if Congress wants
to do that, it ought to do that.
But it ought not to change the rules for trials to deal with a problem
which is created by the fact that there is not a criminal statute that
deals with that issue.
Mr. TIGAR. I think the concerns expressed by the CIA are captious.
Yes; it's true that sometimes by having fair trails, you are going to
have to dismiss or not have espionage cases. Well, as Edward Bennett L
Williams once said to the Supreme Court of the United States, when
the same question was asked of him we have to remember that espio-
nage has the lowest recidivism rate of any Federal offense. Most espio-
nage cases, as a matter of fact, aren't handled through trial procedures;
they get handled other ways-at least where foreigners are involved.
And f don't worry too much about the bogieman theory.
Coming to the merits, Mr. Halperin is right: The procedure is un-
constitutional.
I can give you an example of how inadequate it is from the Truong
case:
One document that was said to have been transmitted, was intro-
duced in evidence. Three government witnesses testified that three
different parts of it affected the national defense of the United States.
And each of the three said that what the other two had identified as
affecting the national defense didn't. One was a Defense person, one
was a State Department person, one was a CIA person.
That illustrates the problem in having a summary witness, because
you can't pick away at the Government's theory through cross-examin-
ation by pointing to the ludicrousness of the differences between the
line-by-line analyses of the document that the jury has in front of it.
And if there's any doubt about the question: Ask your CIA witness
to take this document-this is March 18, 1980-this is the Report of
the Committee on Intelligence. It contains 33 pages, it's an average-
sized government document.
Say, all right, put it away. You no doubt read it before you came in
here. Now, summarize it for us-and don't leave out anything impor-
tant.
Ms. LERoY. The administration, when it testified before the sub-
committee, also suggested that a standard similar to that by which
disclosure of the names of Government informants be used to de-
termine whether or not classified material be disclosed at public trial.
Would both of you, or all of you, respond?
Am I not making myself clear?
Mr. HALPERIN. Well, I have the advantage of having been here, so
I know what you mean.
That goes to the heart of what I think is the basic issue involved
here, which is that this bill, I think, makes it absolutely clear that
there is no State secrets privilege in a criminal trial.
I think that is the law now. There is no case that suggests the opposite.
There are some Supreme Court decisions that suggest that that is the
situation.
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I think any effort to change that would be unconstitutional.
And I think one of the advances of this bill as it came out of the
House Intelligence Committee was that it makes it absolutely clear
that there is no such privilege; and that the standard for the admission
of information does not change in the slightest if the information is
classified.
That's the position that Judge Learned Hand laid down a long time
ago in Andolshek, and I think it's been undisturbed. That paragraph
has been cited with approval by the Supreme Court several times. I
think it is simply a requirement of the Constitution.
Ms. LERoY. Mr. Tigar, what I am talking about there is reliance on
the Rovairo decision on changing the standard of admissibility for
classified information.
Mr. TIGAR. Rovairo involved the trial judge's weighing of factors
when the pretrial criminal discovery process comes upon the problem
of disclosure of an informer's identity. Rovairo has nothing whatever
to do with the admissibility of evidence in a criminal trial.
If the Rovairo-type standard applied, then what you have in effect is
a different standard of relevancy when classified information is at
issue. And that does pose serious constitutional problems.
And, as Judge Learned Hand said-not in Andolshek-but he
adopted Andolshek views and expanded on them in Coplan, United
States v. Coplan-that's a freedom-destroying theory for a govern-
ment to adopt; that when-surely, governmental interests are great,
but so are the accused's; because the stakes are so high-to adopt a
different rule for cases where these things are at issue is simply
impermissible.
Ms. LEROY. Thank you, I have no more questions.
Mr. EDWARDS. Counsel?
Mr. BOYD. Thank you, Mr. Chairman, no questions.
Mr. EDWARDS. Mr. Tigar, I believe you mentioned another subject-
citing 18 U.S. Code 3731 as a model permitting interlocutory appeals
by the Government in Federal criminal proceedings. That statute
provides for. release of the defendant on bail pending the appeal.
Should a similar provision be added to this bill?
Mr. TIGAR. Exactly, Mr. Chairman.
I think you could drop the whole appeal section right out of this bill,
and just amend 3731; or add a subsection to 3731.
Of course, that provision should be added. And, as well, the certifi-
cation procedures of 3731, which are a little more onerous, as I recall,
than the certification procedures in the present bill, ought also to be
applied. That is, the counsel, Government counsel's, certificate as to
the reasons for the appeal.
Mr. EDWARDS. Do you agree?
Mr. HALPERIN. Yes; I think that would be an appropriate change.
Mr. EDWARDS. Numerous court decisions have held that the power
to prosecute and the correlative power not to prosecute belongs solely
to the executive branch. This includes a decision whether to disclose
national security data, or drop the prosecution as an issue in graymail
cases. Section 105 of this bill requires a court to fashion an appro-
priate remedy where the Attorney General objects to the disclosure
of otherwise admissible information.
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Such remedy includes dismissal of some counts of the indictment,
striking or precluding testimony of a witness, finding against the
Government on any issue to which the precluded information relates.
My question, then, is: Does this section 105 at least partially take
the executive prosecutorial function to the judge, and is this shift
constitutionally_ permissible?
Mr. TIGAR. Mr. Chairman, adverse inferences have been drawn
against parties who refuse to produce information ever since the
common law has been in existence.
And down to this good day the law has been the same. In Societe
Internationale v. Rogers, the Supreme Court held that a civil litigant
could be poured out of court for refusal to produce information. And
in criminal cases, the correlative duty of the trial judge to oversee
the fairness of the process and impose sanctions upon a fractious
government that refuses to produce relevant evidence, was upheld
by Judge Learned Hand in the United States v. Andolshek and Coplon, ?
cited with approval in the Dennis case.
So I don't think there's any constitutional problem there.
Mr. EDWARDS. Does anybody have any further observations?
Mr. HALPERIN. Just thank you.
Mr. TIGAR. Thank you.
Mr. ADLER. Thank you.
Mr. EDWARDS.. Thank you very much for some very helpful
testimony.
The committee stands adjourned.
[Whereupon, at 2:55 p.m., the committee hearing was adjourned.]
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CONGRESS OF THE UNITED STATES,
COMMITTEE ON THE JUDICIARY,
HOUSE OF REPRESENTATIVES,
Washington, D.C., March 31, 1980.
CASES IN WHICH NATIONAL SECURITY INFORMATION HAS
BEEN AN ISSUE
U.S. v. Berreliez
Robert Berrellez was ITT's director of inter-American relations in its office in
Santiago, Chile during the time of Salvadore Allende's 1970 presidential cam-
paign. The CIA allegedly encouraged and assisted ITT in funneling hundreds of
thousands of dollars into the campaign fund of Allende's opponent. The Justice
Department brought perjury charges against Mr. Berrellez in 1978, alleging that
he had lied during a 1973 Senate subcommittee hearing regarding links between
ITT and the CIA in Chile.
When the case was about to go to trial, the Justice Department asked for a
closed hearing in which the court could review the sensitive evidence the defense
had indicated it would present at trial. A protective order to circumscribe areas
the defense could touch on in trial was also requested. After the closed hearing, at
which the defense showed how the sensitive data was relevant to its case, the
court ruled that the defense could use the data in presenting its case. The judge
also issued a protective order, but the government felt that the order was insuf-
ficient.
The government sought appellate review of the court's decision, both as to ad-
missibility and as to the protective order, by petitioning for a writ of mandamus,
but the appeals court denied the petition saying that the trial judge had "shown a
proper sensitivity to the requirements of national security." The government then
had to decide whether to allow the data to be revealed or to drop the case. It chose
to drop the case.
U.S. v. Kampiles
In November, 1978, William Peter Kampiles was tried and convicted in federal
district court in Hammond, Indiana, on espionage charges stemming from his
transmittal to the Soviets of a top-secret technical manual describing the KH-11
photographic satellite system. The government's case was based primarily on
Kampiles' confession (recanted at trial) that, shortly before he left his job
as a Watch Officer at CIA headquarters in Langley, he stole the manual, took
it with him when he travelled to Greece to visit relatives, and sold It to an em-
ployee of the Soviet Embassy in Athens for $3,000.
The classified document itself, the KH-11 manual, was central to the case.
Obviously, it would be a major element in the trial. The government sought and
was granted a protective order prohibiting the defendant and his attorneys from
disclosing any information about the manual after they received a copy. The
government then sought and received a supplementary protective order regard-
ing certain specific information in the manual that the government felt was par-
ticularly sensitive. That information included the location of any ground sta-
tions in the KH-11 system and various measures of the image quality of the
system.
Ultimately, disclosure of the complete manual was restricted to the defendant
and his attorneys. The jury received an edited version, which omitted the partic-
ularly sensitive material. The defense did not object to any of the government's
requests for protective orders or other attempts to minimize disclosure of classi-
fled information, including the introduction of the edited version of the manual.
(83)
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ADMINISTRATIVE OFFICE
OF THE U.S. COURTS,
Washington, D.C., June 2, 1980.
Hon. PETER W. RODINO, Jr.,
Chairman, Committee on the Judiciary,
U.S. House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : At its meeting in March 1980, the Judicial Conference
of the United States considered H.R. 4736, a bill to establish certain pretrial and
trial procedures for the use of classified information in connection with federal
criminal cases. The Conference has requested that I advise you that it approved
the bill, subject to two modifications. In the view of the Conference, the promul-
gation of security procedures should more appropriately be made the responsi-
bility of the Judicial Conference or a duly designated committee rather than that
of the Supreme Court or the Chief Justice. The Conference is also of the opinion
that a period of 180 days, rather than only 120 days, should be provided for the
enactment of rules establishing security procedures.
The implementation of the Conference's suggestions would require the follow-
ing modifications in H.R. 4736:
(1) In Section 110(a), at page 14, line 4, the word "twenty" he deleted
and in lieu thereof, the word "eighty" be substituted.
(2) In Section 110(a), at page 14. lines 5 and 6, the words "the Supreme
Court of the United States" be deleted and in lieu thereof, the words "the
Judicial Conference or a duly designated committee thereof" be substituted.
Sincerely,
WILLIAM E. FOLEY; Director.
Re : Classified Information Criminal Trial Procedures Act.
Hon. DON EDWARDS,
Chairman, Subcommittee on Civil and Constitutional Rights, Committee on the
Judiciary, U.S. House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : At the meeting of the House of Delegates of the Ameri-
can Bar Association held February 4-5, 1980 the attached resolution was adopted
upon recommendation of the Section of Criminal Justice and the Standing Com-
mittee on Law and National Security. The action taken thus becomes the official
policy of the Association in this matter.
This resolution is transmitted for your information and whatever action you
may deem appropriate. If hearings are scheduled on the subject of this resolu-
tion, we would appreciate your advising Herbert E. Hoffman, Director of the
American Bar Association Governmental Relations Office, 1800 M Street, N.W.,
Washington, D.C. 20036, [phone].
Please do not hesitate to let us know if you need any further information, have
any questions or if we can be of any assistance.
Sincerely yours, F. WM. MCCAI,PIN.
Attachment.
Resolved, That the American Bar Association supports enactment of "gray-
mail" legislation which will appropriately accommodate and balance the need
of the government to avoid unwarranted disclosure of national security infor-
mation in criminal investigations and trials and the need to assure the accused
in criminal cases their right to fair trial. To accomplish these objectives, the
American Bar Association recommends :
1. That Congress amend either the Federal Rules of Criminal Procedure or
the Federal Rules of Evidence to incorporate the proposal legislative changes;
2. That in cases involving classified information, a mandatory pre-trial con-
ference be ordered by the court on motion of either the prosecution or defense;
3. That the mandatory pretrial conference be held in camera at the request
of the government to avoid unwarranted disclosure of classified information ;
4. That after reviewing (1) the ex parte submission by the prosecution of
classified information which the defense proposes to disclose, and after both
the prosecution and defense have had an opportunity to be heard, the court may
order that,
(a) all of the classified information be disclosed to the defense and/or be avail-
able for use at trial or other proceedings ; or
(b) only portions of the classified information be so disclosed and/or avail-
able ; or
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(c) only summaries of some or all of the classified information be so disclosed
and/or available ; or
(d) none of the classified information be so disclosed and/or available; or
(e) the prosecution may proffer a statement admitting for purposes of the
proceedings or trial any relevant facts such classified information would tend to
prove, provided that the court must proceed pursuant to subsection (a) above if
it finds that, with use of the other alternatives, disclosure of the classified infor-
mation would remain relevant and material to an element of the criminal offense,
to a legally cognizable defense, or to the credibility, bias, or interest of any
witness ;
5. That all classified information not disclosed to an accused be placed under
seal of the court and be secured and maintained for appeal ;
6. That 18 U.S.C. ? 3731 be amended to provide for interlocutory appeal before
or during trial from an order of the trial court in a criminal case requiring or
denying the disclosure of classified information, imposing or refusing sanctions
for nondisclosure of classified information or granting or refusing a protective
order to prevent the diclosure of classified information, provided that provision
be made for expeditious resolution of any such appeal and the provisions of Sec-
tion 3731 on pretrial release be followed ;
7. That the Attorney General, Deputy Attorney General, or a designated Assist-
ant Attorney General be required to make to the court the initial invocation of
these classified information procedures ;
8. That provisions in pending graymail legislation amending the Jencks Act
(18 U.S.C. ? 3500) be opposed as presently drafted; but that if alternative amend-
ments are proposed, that they appropriately accommodate and balance the need
of the government to avoid unwarranted disclosure of national security informa-
tion and the need to assure the accused in criminal cases their right to a fair trial ;
9. That if as a result of the procedures adopted in the graymail legislation the
defense is required to disclose information it would not otherwise be required to
disclose under the Federal Rules of Criminal Procedure, then the government
shall be required to disclose to the defense that information it will rely on to rebut
what the defense has disclosed, (thus providing that if the defense is required to
reveal the identity of its witnesses who will disclose the particular classified
information at issue, the government will disclose the witnesses it will call in
rebuttal) ; and that in light of this, inclusion of a "bill of particulars" provision
in the graymail legislation is unnecessary ; and
10. That provisions in pending "graymail" legislation should be opposed which
would impose on the Department of Justice automatic, detailed reporting require-
ments to the Congress whenever a decision is made not to prosecute a person
because of the possibility that classified information will be revealed.
Hon. EDWARD P. Bor.AND,
Chairman, House Permanent Select Committee on Intelligence,
Capitol, Washington, D.C.
DEAR MR. CHAIRMAN : As you know, the Subcommittee on Civil and Constitu-
tional Rights is considering H.R. 4736, which was recently reported by your
Committee.
At one of the Subcommittee's hearings on the bill, a witness expressed the con-
cern that a situation could arise in which the defense, or even the court, might
not have complete access to classified information clearly relevant to his defense
and admissible under applicable Rules of Evidence.
The situation would arise as follows :
1. Sec. 102(c) of the bill permits the government to initiate the in camera
proceeding to determine the relevance and admissibility of the classified
information.
2. In such cases, when the government has not already made the informa-
tion available to the defense, the government, in notifying the defense of the
information at issue, may refer to the information by generic category,
rather than actually identify the information.
3. At the in camera proceeding triggered by Sec. 102 referred to above, the
court determines the relevance and admissibility of the information. The bill
is silent to the nature of the hearing, although the legislative history indi-
cates the proceeding is to he a fully adversary hearing.
4. After the determination of admissibility is made under Sec. 102, Sec. 103
permits the government to request-and the court to order-the substitution
of a summary or admission for the actual classified information. Thus, it is
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possible that, in a government ordered proceeding involving classified infor-
mation not already in the possession of the defense, the defense might not
have complete access to relevant material, but might be limited to summaries
or descriptions of generic categories.
The bill does not require this result, but because of its silence on both the
nature of the 102 proceeding and the requirements of the government to disclose
in the course of the proceeding, such a result is not prohibited either. A zealous
prosecutor could argue that the material at issue is too sensitive to be disclosed
even to the defense in an in camera proceeding to determine relevance, much less
at the trial itself. A literal reading of the bill might not preclude this result.
Other witnesses disagreed and maintained that such was not the intent of the
Intelligence Committee In drafting the bill. They argued that a truly adversary
proceeding under Sec. 102 (which the bill seems to contemplate) would require
defense access to all classified information at issue in such a proceeding.
I believe that further clarification is necessary. I would appreciate your letting
me know your understanding of the Intelligence Committee's intent. Any infor-
mation or comments you or the Committee could provide to clear up the confusion
would be very helpful.
Thank you for your assistance.
With kind regards,
Sincerely,
DON EDWARDS,
Chairman, Subcommittee on Civil
and Constitution Rights.
U.S. HOUSE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
Washington, D.C., June 12, 1980.
Hon. DON EDWARDS,
Chairman, Subcommittee on Civil and Constitutional Rights, Committee on the
Judiciary, House Office Building Anneco, Washington, D.C.
DEAR MR. CHAIRMAN : Thank you for your letter of June 12 seeking clarifica-
tion of a possibly confusing aspect of the graymail bill now before your
subcommittee.
It is not the intent of the Intelligence Committee to authorize, nor, I believe,
would the bill permit, the result suggested by your witness and reflected in
point 4 of your letter.
The scenario outlined in your letter is based on the faulty premise that,
because of the generic category provision of section 102(e), a section 102 or
103 proceeding could be held regarding information not in the possession of the
defendant. No such hearing may be held ; consequently, the defendant will never
be in the position of being required to Introduce summaries of generic categories.
The purpose of a section 102 proceeding is to determine prior to trial the
admissibility, at trial, of classified information already in the possession of the
defendant. The purpose of a section 103 proceeding is to determine if admissible
evidence in the possession of the defendant may be introduced in a summary
form. The information in the possession of the defendant may have been sup-
plied
to the defendant by the government pursuant to a pre-trial discovery
request, or it may have been acquired by the defendant from some other source.
To facilitate the argument, at a 102 proceeding, as to the admissibility of such
information, section 102(e) requires the government to give notice, prior to the
proceeding, of the classified information at issue. If the classified information
the defendant posseses was given to him by the government, the government
will have already confirmed its sensitivity ; therefore, the required notice can
be specific. However, If the sensitive information at issue was obtained by the
defendant from a non-government source, then the government is not required
to confirm its accuracy or to expand the defendant's knowledge of classified
information, and the required notice can be by generic category. This is all that
is contemplated by section 102(e).
. In conclusion, I would emphasize that it is the intent of the Intelligence Com-
mittee, as reflected In its report, that all hearings to be conducted pursuant to
sections 102 and 103 of H.R. 4736 will be fully adversary and will be concerned
only with information to which the defendant will have had full access.
With every good wish, I am
Sincerely yours,
EDWARD P. BOLAND, Chairman,
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96TH CONGRESS He R. 4736
1ST SESSION
To establish certain pretrial and trial procedures for the use of classified
information in connection with Federal criminal cases, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JULY 11, 1979
Mr. MURPHY of Illinois (for himself, Mr. BOLAND, Mr. MCCLORY, Mr. ZABLOCKI,
Mr. BURLISON, Mr. ASPIN, Mr. RosE, Mr. MAZZOLI, Mr. MINETA, Mr.
FOWLER, and Mr. DANIELSON) introduced the following bill; which was.
referred jointly to the Committee on the Judiciary and the. Permanent Select
Committee on Intelligence
A BILL
To establish certain pretrial and trial procedures for the use of
classified information in connection with Federal criminal
cases, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Classified Information
4 Criminal Trial Procedures Act".
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1 TITLE I-PROCEDURES FOR DISCLOSURE OF
2 CLASSIFIED INFORMATION IN CRIMINAL
3 CASES
PRETRIAL CONFERENCES
SEC. 101. At any time after the filing by the United
States of an indictment or information in a United States
district court, any party to the case may request a pretrial
conference to consider matters relating to classified informa-
tion that may arise in connection with the prosecution. Upon
such a request, the court shall promptly hold a pretrial con-
ference to establish a schedule for any request for discovery
of classified information and for the implementation of the
procedures established by this title. In addition, at such a
pretrial conference the court may consider any other matter
which may promote a fair and expeditious trial.
16 PROCEDURES FOR DISCLOSURE OF CLASSIFIED
17 INFORMATION
18 SEC. 102. (a)(1) Whenever a defendant in any Federal
19 prosecution intends to take any action to disclose or cause
20 the disclosure of classified information in any manner in con-
21 nection with such prosecution, the defendant shall, before
22 such disclosure and before the trial or any pretrial hearing,
23 notify the court and the attorney for the United States of
24 such intention and shall not disclose or cause, the disclosure
25 of such information unless authorized to do so by the court in
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1 accordance with this title. Such notice shall include a brief
2 description of the classified information that is the subject of
3 such notice.
4 (2)(A) Within ten days of receiving a notification under
5 paragraph (1) or otherwise learning before the trial or any
6 pretrial hearing that any action of a defendant will require or
7 is likely to result in the disclosure of classified information at
8 the trial or such pretrial hearing, the United States, by writ-
9 ten petition of the Attorney General, may request the court
10 to conduct a proceeding to make all determinations concern-
11 ing the use, relevance, or admissibility of the.classified infor-
12 mation at issue that would otherwise be made during the trial
13 or a pretrial hearing. Upon such a request, the court shall
14 conduct such a proceeding.
15 (B) Any proceeding held pursuant to a request under
16 subparagraph (A) (or any portion of such proceeding specified
17 in the request of the Attorney General) shall be held in
18 camera if the Attorney General certifies to ,the court. in such
19 petition that a public proceeding may result in the disclosure
20 of classified information.
21 (C) If a request for a proceeding under this _subsection.is
22. not made within ten days or if, at the close of. such a proceed--
23. ing, the determination.. of the, court regarding the. use;: rei
24 evance,_ or admissibility of the: classified information :at.:issue:
25 is favorable to the. defendant, . the: .court: shall, authorize: the:
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1 defendant to disclose or cause the disclosure of the classified
2 information at the trial or at any pretrial hearing, but such
3 disclosure may not be made before the time for the United
4 States to appeal such determination under section 108 has
5 expired. If the United States takes such an appeal, such dis-
6 closure may not be made until such appeal is decided.
7 (b)(1) Whenever a defendant in a Federal prosecution
8 intends to take any action to disclose or cause the disclosure,
9 during the trial or any pretrial hearing, of any classified infor-
10 mation and the defendant has not given notice under subsec-
11 tion (a)(1) with respect to such disclosure because the interest
12 of the defendant in such disclosure reasonably could not have
13 been anticipated before the expiration of the time for giving
14 such notice, the defendant shall, before taking such action,
15 notify the court and the attorney for the United, States of
16 such intention and shall not disclose or cause the disclosure
17 of such information unless authorized by the court to do so in
18 accordance with this title. Such notice shall include a brief
19 description of the classified information that is the subject of
20 such notice.
21 (2)(A) Within forty-eight hours of the receipt of a notifi-
22 cation under paragraph (1), the United States, by written pe-
23 tition of the Attorney General, may request the court to con-
24 duct a proceeding to make all determinations concerning the
25 use, relevance, or admissibility of the classified information at
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1 issue. Upon such a request, the court shall conduct such a
2 proceeding.
3 (B) Any proceeding held pursuant to a request under
4 subparagraph (A) (or any portion of such proceeding specified
5 in the request of the Attorney General) shall be held in
6 camera if the Attorney General certifies to the court in such
7 petition that a public proceeding may result in the disclosure
8 of classified information.
9 (C) If a request for a proceeding under this subsection is
10 not made within forty-eight hours or if, at the close of such a
11 proceeding, the determination of the court regarding the use,
12 relevance, or admissibility of the classified information at
13 issue is favorable to the defendant, the court, subject to the
14 provisions of section 106, shall authorize the defendant to
15 disclose or cause the disclosure of the classified information
16 at the trial or any pretrial hearing, but such disclosure may
17 not be made before the time for the United States to appeal
18 such determination under section 108 has expired. If the
19 United States takes such an appeal, such disclosure may not
20 be made until such appeal is decided. In any order of the
21 court under this subsection that is favorable to the defendant,
22 the court shall specify the time to be allowed the United
23 States to appeal such order under section 108.
24 (c)(1) Whenever the United States learns during a crimi-
25 nal trial or a pretrial hearing in connection with a criminal
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1 trial (other than by notification pursuant to subsection (b)(1))
2 that any action of the defendant will result in, or is likely to
3 result in, the disclosure of classified information which has
4 not been the subject of pretrial notice under subsection (a),
5 the United States, by written petition of the Attorney Gener-
6 al, may request the court to conduct a proceeding to make all
7 determinations concerning the use, relevance, or admissibility
8 of the classified information at issue. Upon such a request,
9 the court shall conduct such a proceeding.
10 ' (2) Any proceeding held pursuant to a request under
.11 paragraph (1) (or any portion of such proceeding specified in
12 " the request of the Attorney General) shall be held in camera
13 if the Attorney General certifies to the court in such petition
44' that a public proceeding may result in the disclosure of classi-
15 fied information.
16- (3)-If, at the plose of a proceeding held pursuant to this
`17 subsection, the determination of the court regarding the use,
18 relevance, or admissibility of the classified information at
'19 .issue is favorable to the defendant, the court, subject to the
2Q provisions of section 106, shall authorize the defendant to
21 disclose or cause the disclosure of the classified information
22 at the trial or at any pretrial hearing, but such disclosure
23 may not be made before the time for the United States to
24 appeal such determination under section 108 has expired. If
.25 the United States takes such an appeal, such disclosure may
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1 not be made until such appeal is decided. In any order of the
2 court under this subsection that is favorable to the defendant,
3 the court shall specify the time to be allowed the United
4 States to appeal such order under section 108.
5 (d) Upon receiving a request from the United, States for
6 a proceeding under subsection (a)(2), (b)(2), or (c)(1), the
7 court shall issue an order prohibiting the defendant from dis-
8 closing or causing the disclosure of the classified information
9 at issue pending conclusion of the proceeding.
10 (e) Before any proceeding is conducted pursuant to a
11 request by the United States under subsection (a)(2), (b)(2), or
i2
13
14
15
(c)(1), the United States shall provide the defendant with
notice of the classified information that is at issue. Such
16 ble to the defendant by the United States. When the United
17 States has not previously made the information available to
18 the defendant, the information may be described by generic
19 category rather than by identification of the specific informa-
20 tion of concern to the United States.
21 (f) During the examination of a witness by a defendant
22 in any criminal proceeding, the United States may object to
23 any question or line of inquiry that may require the witness
24 to disclose classified information .not previously found to be
25 admissible in accordance with the procedures established by
notice shall identify the specific classified information at issue
whenever that information previously has been made availa-
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1 this title. Upon such an objection, the court shall take such
2 action to determine whether the response is admissible as
3 will safeguard against the disclosure of any classified infor-
4 mation. Such action may include requiring the United States
5 to provide the court with a proffer of the response of the
6 witness to the question or line of inquiry anticipated by the
7 United States and requiring the defendant to provide the
8 court with a proffer of the nature of the information sought to
9 be elicited.
10 ALTERNATIVE PROCEDURE FOR DISCLOSURE OF
11 CLASSIFIED INFORMATION
12 SEC. 103. (a) Upon any determination by the court au-
13 thorizing the disclosure of specific classified information
14 under the procedures established by section 102, the United
15 States may move that, in lieu of the disclosure of such specif-
16 is classified information, the court order-
17 (1) the substitution for such classified information
18 of a statement admitting relevant facts that the specific
19 classified information would tend to.prove; or
20 (2) the substitution for such classified information
21 of a summary of the specific classified information.
22 The court shall grant such a motion of the United States if it
23 finds that the defendant's right to a fair trial will not be pre-
24 judiced thereby. The court shall hold a hearing on any motion
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1 under this section. Any such hearing shall be held in camera
2 at the request of the Attorney General.
3 (b) The United States may, in connection with a motion
4 under subsection (a), submit to the court an affidavit of the
5 Attorney General certifying that disclosure of the classified
6 information would cause identifiable damage to the national
7 security of the United States and explaining the basis for the
8 classification of such information. If so requested by the
9 United States, the court shall examine such affidavit in
10 camera and ex parte.
11 SEALING OF RECORDS OF IN CAMERA PROCEEDINGS
12 SEC. 104. If at the close of an in camera proceeding
13 under this title (or any portion of a proceeding under this title
14 that is held in camera) the court determines that the classi-
fied information at issue may not be disclosed or elicited at
the trial or any pretrial hearing, the record of such in camera
proceeding shall be sealed and preserved by the court for use
in the event of an appeal.
PROHIBITION ON DISCLOSURE OF CLASSIFIED INFORMA-
TION BY DEFENDANT; RELIEF FOR DEFENDANT WHEN
UNITED STATES OPPOSES DISCLOSURE
SEC. 105. (a) Whenever the court denies a motion by
23 the United States that it issue an order under section 103(a)
24 and the United States files with the court an affidavit of the
25 Attorney General objecting to disclosure of the classified in-
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1 formation at issue, the court shall order that the defendant
2 not disclose or cause the disclosure of such information.
3 (b) Whenever a defendant is prevented by an order
4 under subsection (a) from disclosing or causing the disclosure
5 of classified information, the court shall dismiss the indict-
6 ment or information. However, when the court determines
7 that the interests of justice would not be served by dismissal
8 of the indictment or information, the court shall order such
9 other action, in lieu of dismissing the indictment or informa-
10 tion, as the court determines is appropriate. Such action may
11 include-
12 (1) dismissing specified counts of the indictment or
13 information;
14 (2) finding against the United States on any issue
15 as to which the excluded classified information relates;
16 or
17 (3) striking or precluding all or any part of the
18 testimony of a witness.
19 FAILURE OF DEFENDANT TO PROVIDE PRETRIAL NOTICE
20 SEC. 106. If a defendant fails to comply with the notice
21 requirements of subsection (a) or (b) of section 102 and the
22 court finds that the defendant's need to disclose or cause the
23 disclosure of the classified information at issue reasonably
24 could have been anticipated before the expiration of the time
25 for giving such notice under such subsection, the court may
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1 prohibit the defendant from disclosing or causing the disclo-
2 sure of such classified information during trial and may pro-
3 hibit the examination by the defendant of any witness with
4 respect to any such information.
5 RECIPROCITY; DISCLOSURE BY THE UNITED STATES OF
6 REBUTTAL EVIDENCE
C 7 SEC. 107. (a) Whenever the court determines, in ac-
8 cordance with the procedures prescribed in section 102, that
9 classified information may be disclosed in connection with a
10 criminal trial or pretrial hearing or issues an order pursuant
11 to section 103(a), the court shall-
12 (1) order the United States to provide the defend-
13 ant with 'the information it expects to use to rebut the
14 particular classified information at issue; and
15 (2) order the United States to provide the defend-
16 ant with the identity of any witness it expects to use
17 to rebut the particular classified information at issue.
18 (b) If the United States fails to comply with an order
4 19 under subsection (a), the court, unless it finds that the use at
20 trial of information or a witness reasonably could not have
21 been anticipated, may exclude any evidence not made the
22 subject of a required disclosure and may prohibit the exami-
23 nation by the United States of any witness with respect to
24 such information.
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1 (c) Whenever the United States requests a pretrial pro-
2 ceeding under section 102, the United States, upon request
3 of the defendant, shall provide the defendant with a bill of
4 particulars as to the portions of the indictment or information
5 which the defendant identifies as related to the classified in-
6 formation at issue in the pretrial proceeding. The bill of par-
7 ticulars shall be provided before such proceeding.
8 APPEALS BY THE UNITED STATES
9 SEC. 108. (a) The United States may appeal to a court
10 of appeals before or during trial from any decision or order of
11 a district court in a criminal case requiring or authorizing the
12 production, disclosure, or use of classified information, impos-
13 ing sanctions for nondisclosure of classified information, or
14 denying the issuance of a protective order sought by the
15 United States to prevent the disclosure of classified informa-
16 tion, if the Attorney General certifies to the district court
17 that the appeal is not taken for purpose of delay.
18 (b)(1) If an appeal under this section is taken before the
'19 trial has begun, the appeal shall be taken within ten days
20 after the date of the decision or order appealed from, and the
21 trial shall not commence until the appeal is decided.
22 (2) If an appeal under this section is taken during the
23 trial, the trial court shall adjourn the trial until the appeal is
24 resolved, and the court of appeals (A) shall hear argument on
25 such appeal within four days of the adjournment of the trial,
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1 (B) may dispense with written briefs other than the support-
2 ing materials previously submitted to the trial court, (C) shall
3 render its decision within four days of argument on appeal,
4 and (D) may dispense with the issuance of a written opinion
J 5 in rendering its decision.
6 (c) Any appeal and decision under this section shall not
7 affect the right of the defendant, in a subsequent appeal from
21 ments, or to substitute a statement admitting relevant facts
22 that the classified information would tend to prove. The
23 motion of the United States requesting such authorization
24 (and materials submitted in support of such motion) shall,
8 a judgment of conviction, to claim as error reversal by the
9 trial court on remand of a ruling appealed from during trial.
10 PROTECTIVE ORDERS
11 SEC. 109. (a) Upon motion of the United States, the
12 court shall issue an order to protect against the disclosure of
13 any classified information disclosed by the United States to
14 any defendant in any criminal case in a district court of the
15 United States.
16 (b) Pursuant to its authority under the Federal Rules of
17 Criminal Procedure, the court may authorize the United
18 States to delete specified items of classified information from
19 documents to be made available to the defendant, to substi-
20 tute a summary of the information for such classified docu-
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15
16
17
18
14
1 upon request of the United States, be considered by the court
2 in camera and shall not be disclosed to the defendant.
3 SECURITY PROCEDURES
4 SEC. 110. (a) Within one hundred and twenty days of
5 the date of the enactment of this Act, the Supreme Court of
6 the United States, in consultation with the Attorney General
7 and the Director of Central Intelligence, shall prescribe rules )
8 establishing procedures for the protection against unauthor-
9 ized disclosure of any classified information in the custody of
10 the United States district courts, courts of appeals, or Su-
11 preme Court. Such rules, and any changes in such rules,
12 shall be submitted to the appropriate committees of Congress
13 and shall become effective forty-five days after such submis-
sion.
19 IDENTIFICATION OF INFORMATION RELATED TO THE
20 . ... -: NATIONAL DEFENSE
21 SEC. 111. In any prosecution in which the United
22 States must establish as an element of the offense that mate-
23 rial relates to the national defense or constitutes classified
24 information, the United States shall notify the defendant,
25 within the time specified by the court, of the portions of the
(b) Until such time as rules under subsection (a) first
become effective, the Federal courts shall in each case in-
volving -classified information adopt procedures to protect
against the.-unauthorized disclosure of such information.
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1 material that it reasonably expects to rely upon to establish
2 such element of the offense.
3 FUNCTIONS OF ATTORNEY GENERAL MAY BE EXERCISED
4 BY DEPUTY ATTORNEY GENERAL AND A DESIGNATED
5 ASSISTANT ATTORNEY GENERAL
6 SEC. 112. The functions and duties of-the Attorney
7 General under this title may be exercised by the Deputy At-
8 torney General and by an Assistant Attorney General desig-
9 nated by the Attorney General for such purpose and may not
10 be delegated to any other official.
11 DEFINITION
12 SEC. 113. As used in this title, the term "classified in-
13 formation" means information or material that is designated
14 and clearly marked or clearly represented, pursuant to the
15 provisions of a statute or Executive order (or a regulation or
16 order issued pursuant to a statute or Executive order), as
17 information requiring a specific degree of protection against
18 unauthorized disclosure for reasons of national security, or
19 information derived therefrom, or any Restricted Data, as de-
20 fined in section 11 y. of the Atomic Energy Act of 1954 (42
21 U.S.C.2014(y)).
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1 TITLE II-DEPARTMENT OF JUSTICE DECISIONS
2 NOT TO PROSECUTE BECAUSE OF POSSIBLE
3 DISCLOSURE OF CLASSIFIED INFORMATION
4 GUIDELINES PRESCRIBED BY THE ATTORNEY GENERAL
5 SEC. 201. Within ninety days of the date of the enact-
.6 ment of this Act, the Attorney General shall issue guidelines
7 specifying the factors to be used by the Department of Jus- )
8 tice in deciding whether to prosecute a violation of Federal
9 law in which there is a possibility that classified information
10 will be disclosed. Such guidelines shall be promptly transmit-
11 ted to the appropriate committees of the Congress.
12 PREPARATION OF FINDINGS WHEN DECISION NOT TO
13 PROSECUTE IS MADE
14 SEC. 202. (a) Whenever the United States decides not
15 to prosecute any individual for a violation of Federal law
16 because there is a possibility that classified information will
17 be revealed, an appropriate official of the Department of Jus-
18 tice shall prepare written findings detailing the reasons for
19 the decision not to prosecute such individual. The findings
20 shall be prepared within thirty days of the date on which the
21 decision not to prosecute is made and shall include-
22 (1) the classified information which the United
23 States believes might be disclosed;
24 (2) the purpose for which the information might
25 be disclosed;
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1 (3) the probability that the information would be
2 disclosed in the event of a prosecution; and
3 (4) the possible consequences such disclosure
4 would have on the national security.
5 (b) All findings under subsection (a) shall be promptly
6 reported to the Permanent Select Committee on Intelligence
e' 7 of the House of Representatives and the Select Committee
8 on Intelligence of the Senate.
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